Did the Arkansas AG approve a ballot measure to allow abortion in cases of rape, incest, fatal fetal anomaly, or risk to the mother's life or physical health?
Plain-English summary
Steven Nichols submitted the "Arkansas Abortion Amendment" to the Attorney General for the certification required before petition circulation. The proposal would have allowed abortion in cases of rape, incest, fatal fetal anomaly, or to protect the pregnant patient's life or physical health, and within 18 weeks of fertilization.
Attorney General Tim Griffin rejected the popular name and ballot title. He had previously reviewed an earlier version of the proposal in Opinion No. 2023-107 and pointed out that "health" was undefined and could include emotional or other non-physical health. Mr. Nichols revised the text to limit it to "physical health" and added a definition.
But the new definition was self-contradictory. Section 3(B) of the proposed text defined "physical health" as "a physical disorder, physical illness, or physical injury…caused by or arising from the pregnancy itself." That defines health as the presence of disorder, illness, or injury, the opposite of the common meaning of health. When you substitute the definition into the operative text, the sentence reads as if abortion is permitted to "protect the pregnant female's physical disorder, physical illness, or physical injury," which is the inverse of what was clearly intended.
The AG could not certify a ballot title that summarized that text faithfully because doing so would mislead voters. He could not substitute and certify a different ballot title because the substitution would not be a fair summary of the text as drafted. And he had no authority to alter the underlying text. The only path forward was rejection and an instruction to "redesign" the proposed amendment.
What this means for you
If you are an abortion-rights advocate or ballot-measure organizer
The opinion is not a merits ruling. The AG is not saying Arkansas voters cannot decide the abortion question. He is saying the drafting of this version was internally inconsistent on a key definition, and the law gave him no choice but to send it back. The fix is to redraft the definition so that "physical health" is defined as the absence of certain conditions, or as the protection from those conditions, rather than as the conditions themselves. Once the text is internally consistent, the AG can review it again.
If you are an Arkansas voter following the issue
This particular version of the Arkansas Abortion Amendment was not certified to circulate. That meant signatures could not be gathered on it as drafted. Whether a future redrafted version is certified depends on a clean substantive text.
If you are a ballot-measure drafter
There is a craft lesson here. Definition sections often get less attention than the operative text, but they can sink the whole proposal. When the operative clause refers to a defined term, do the substitution exercise: read the operative clause aloud with the definition swapped in, and ask whether it still says what you mean. The AG did exactly that here and found the substitution rendered the text nonsensical.
Also note the AG's structural limit. He cannot rewrite the substantive text of your proposal to fix bugs. He can only tweak the popular name or ballot title. If the bug is in your operative text or in your definitions, you have to redraft and resubmit.
If you are a constitutional or election-law attorney
The opinion confirms that the AG reads his certification authority strictly: he cannot certify a ballot title that misleads about what the text says, and he cannot substitute language that does not match the underlying text. The fact that he could intuit Mr. Nichols's intent ("I suspect you intended something like this: to permit 'abortion services' when, among other things, they 'are needed to protect the pregnant female from a physical disorder, physical illness, or physical injury'") was not enough to save the certification. The text controls.
Common questions
Q: Did the AG block this ballot measure on the merits?
A: No. The AG explicitly disclaims any authority to consider the merits of a proposed measure when reviewing certification. He rejected the ballot title because the proposed text contained a self-contradictory definition that would force the ballot title to mislead voters.
Q: What was the specific defect?
A: The definition of "physical health" in Section 3(B) listed "a physical disorder, physical illness, or physical injury" as the meaning of physical health. The common meaning of health is the absence of those things. So the operative text, when read with the definition substituted, said the opposite of what the sponsor intended.
Q: Why didn't the AG just substitute clearer language?
A: He has authority to substitute the popular name and ballot title, not the substantive text. Substituting a ballot title that fixes the contradiction would not be a fair summary of what the text actually says.
Q: What happens to the proposal now?
A: The sponsor was directed to "redesign" the amendment and resubmit. The earlier Opinion No. 2023-107 had also flagged the underlying "health" definition issue.
Q: Is rejection the same as final defeat?
A: No. Rejection is a procedural ruling on this draft. Sponsors can redraft as many times as they want and resubmit for certification. Each new draft is reviewed independently.
Q: Can a court overturn the AG's rejection?
A: A sponsor can challenge a certification denial in court under Arkansas election law. The AG's discretion is bounded, and a court could disagree about whether a defect was sufficient to require rejection.
Background and statutory framework
A.C.A. § 7-9-107 puts the AG in a gatekeeping role for citizen-initiated amendments and acts. Sponsors submit the text, popular name, and ballot title. The AG must do one of three things:
- Certify as submitted. The popular name and ballot title accurately summarize the proposal and the text is not internally defective.
- Substitute and certify. The AG rewrites the popular name and ballot title to fairly summarize the text and certifies the rewritten version.
- Reject. The text is so defective that no faithful ballot title can be drafted, or the popular name or ballot title is irretrievably misleading. The AG must "stat[e] [his] reasons therefor" and instruct the sponsor to redesign.
The AG's authority does not extend to the substantive text. If the text is broken, the AG cannot fix it; he can only reject. That structural limit is what doomed this draft. The sponsor's intent was clear (allow abortion to protect against physical disorders, illnesses, or injuries from pregnancy), but the definition was drafted as if "physical health" was a disorder, illness, or injury. The substitution test exposed the inconsistency.
The AG had previously rejected the earlier version (Opinion No. 2023-107) for related reasons, including the unspecific "health" term. The sponsor partially fixed that issue by narrowing to "physical health" and adding a definition, but the definition itself introduced this new problem.
Citations and references
Statutes:
- A.C.A. § 7-9-107 (review and certification of popular names and ballot titles)
Prior AG opinions referenced:
- Ark. Att'y Gen. Op. 2023-107 (review of earlier version of the Arkansas Abortion Amendment)
Source
Original opinion text
Opinion No. 2023-121
January 4, 2023
Steven Nichols
Post Office Box 7866
Little Rock, Arkansas 72217
Dear Mr. Nichols:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular name and ballot title for a proposed constitutional amendment.
My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure's merits. I am not authorized to consider the measure's merits when considering certification.
1. Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name and ballot title for a proposed initiated amendment to the Arkansas Constitution:
Popular Name
Arkansas Abortion Amendment
Ballot Title
AN AMENDMENT TO THE ARKANSAS CONSTITUTION PROVIDING THAT THE GOVERNMENT OF THE STATE OF ARKANSAS, ITS OFFICERS, OR ITS POLITICAL SUBDIVISIONS SHALL NOT PROHIBIT, PENALIZE, DELAY OR RESTRICT ABORTION SERVICES IN CASES OF RAPE, INCEST, IN THE EVENT OF A FATAL FETAL ANOMALY, OR WHEN ABORTION SERVICES ARE NEEDED TO PROTECT THE PREGNANT FEMALE'S LIFE OR PHYSICAL HEALTH; THE GOVERNMENT OF THE STATE OF ARKANSAS, ITS OFFICERS, OR ITS POLITICAL SUBDIVISIONS SHALL NOT PROHIBIT, PENALIZE, DELAY OR RESTRICT ABORTION SERVICES WITHIN 18 WEEKS OF FERTILIZATION; A FATAL FETAL ANOMALY MEANS A MEDICAL CONDITION DIAGNOSED BEFORE BIRTH THAT, IN THE PHYSCIAN'S GOOD FAITH MEDICAL JUDGMENT, WILL LEAD TO FETAL OR NEONATAL DEATH FOR WHICH LIFE-SAVING MEDICAL INTERVENTION WOULD BE FUTILE; PHYSICAL HEALTH MEANS A PHYSICAL DISORDER, PHYSICAL ILLNESS, OR PHYSICAL INJURY, INCLUDING A LIFE-ENDANGERING PHYSICAL CONDITION CAUSED BY OR ARISING FROM THE PREGNANCY ITSELF, OR WHEN CONTINUATION OF THE PREGNANCY WILL CREATE A SERIOUS RISK OF SUBSTANTIAL IMPAIRMENT OF A MAJOR BODILY FUNCTION OF THE PREGNANT FEMALE, AS DIAGNOSED IN THE PHYSICIAN'S GOOD FAITH MEDICAL JUDGMENT; MAJOR BODILY FUNCTION INCLUDES FUNCTIONS OF THE IMMUNE SYSTEM, NORMAL CELL GROWTH, AND DIGESTIVE, BOWEL, BLADDER, NEUROLOGICAL, BRAIN, RESPIRATORY, CIRCULATORY, ENDOCRINE, AND REPRODUCTIVE FUNCTIONS, AND OPERATION OF AN INDIVIDUAL ORGAN WITHIN A BODY SYSTEM; FERTILIZATION MEANS THE INTRAUTERINE FUSION OF A HUMAN SPERMATOZOON WITH A HUMAN OVUM; ABORTION SERVICES ARE MEDICAL INTERVENTIONS PROVIDED TO PREGNANT FEMALES TO END THE MEDICAL CONDITION OF PREGNANCY BUT DO NOT INCLUDE ACCIDENTAL OR UNINTENTIONAL INJURY OR DEATH OF AN EMBRYO OR FETUS PRIOR TO BIRTH; ABORTION SERVICES ASSISTED BY A PHYSICIAN MAY BE PROVIDED IN A HOSPITAL, EMERGENCY DEPARTMENT, PHYSICIAN'S OFFICE OR CLINIC, SURGERY CENTER, FREE-STANDING BIRTHING CENTER, OR OTHER LICENSED HEALTHCARE FACILITY; AMENDMENT 68 OF THE ARKANSAS CONSTITUTION IS AMENDED TO READ: "SECTION 2: PUBLIC POLICY: THE POLICY OF ARKANSAS IS TO PROTECT THE LIFE OF EVERY UNBORN CHILD FROM CONCEPTION UNTIL BIRTH, TO THE EXTENT PERMITTED BY THE FEDERAL CONSTITUTION AND THE CONSTITUTION OF THE STATE OF ARKANSAS"; ALL PROVISIONS OF THE CONSTITUTION, STATUTES AND COMMON LAW OF THIS STATE TO THE EXTENT INCONSISTENT OR IN CONFLICT WITH ANY PROVISION OF THIS AMENDMENT ARE EXPRESSLY DECLARED NULL AND VOID. THIS AMENDMENT SHALL BE SELF-EXECUTING; ANY PROVISION OF THIS AMENDMENT HELD INVALID SHALL BE SEVERABLE FROM THE REMAINING PORTIONS OF THIS AMENDMENT.
2. Rules governing my review. In Opinion No. 2023-107, issued in response to your previous request for review and certification, I articulated the rules and standards that govern this process. I rely on those same rules and standards here, and I incorporate that analysis into this opinion.
4. Application. In Opinion No. 2023-107, regarding the prior version of your proposal, I noted that several issues prevented me from certifying your popular name and ballot title. You have now resolved all but one of those issues. The prior version of your proposed text permitted abortion when, among other things, it was "needed to protect the pregnant female's life or health." I noted that the term "health" was unclear in this context because it could mean physical health, emotional health, etc. I concluded that this would need to be clarified to ensure a ballot title summarizing the measure would not mislead the voter in any way.
Your current proposed text attempts to address this by clarifying that abortion would be allowed when, among other things, it is "needed to protect the pregnant female's life or physical health." (Emphasis added.) Section 3(B) of your proposed text defines "physical health" as "a physical disorder, physical illness, or physical injury…caused by or arising from the pregnancy itself, or when continuation of the pregnancy will create a serious risk of substantial impairment of a major bodily function…." (Emphases added.)
This definition is misleading because it defines "physical health," not as the absence of disorder, illness, or injury, but as the presence of those things. That is the opposite of the common meaning of "health." This confusion is compounded when, for the sake of analysis, one substitutes your definition of "physical health" provided in Section 3(B) for the term "physical health" you use in Section 1. That sentence would read: "Abortion services" are permitted when, among other things, they "are needed to protect the pregnant female's physical disorder, physical illness, or physical injury…caused by or arising from the pregnancy itself, or when continuation of the pregnancy will create a serious risk of substantial impairment of a major bodily function…." As the foregoing sentence indicates, it is readily apparent that what you likely intended to say is not what the text says. This problem in the text is imported directly into your proposed ballot title.
I assume that you did not intend this result. Rather, I suspect you intended something like this: to permit "abortion services" when, among other things, they "are needed to protect the pregnant female from a physical disorder, physical illness, or physical injury…caused by or arising from the pregnancy itself…." But that is not what your draft does.
The foregoing defect prevents me from certifying your proposed ballot title. And I am unable to substitute and certify a ballot title describing what I assume to be your intent because that substitution would not be a fair and accurate summary of the text as it is currently drafted. Nor can I make any change to your text because I have no authority to alter the text of proposed statewide measures.
Because of the issue identified above, my statutory duty is to reject your proposed popular name and ballot title, stating my reasons therefor, and to instruct you to "redesign" your proposed constitutional amendment.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General