Did the Arkansas AG certify the popular name and ballot title for the 2024 Arkansas Abortion Amendment?

Plain-English summary

Steven Nichols submitted a proposed constitutional amendment that would establish new constitutional protections for abortion services in Arkansas. The proposal would prevent state government, its officers, or political subdivisions from prohibiting, penalizing, delaying, or restricting abortion services in four specific circumstances:

1. Cases of rape
2. Cases of incest
3. Fatal fetal anomaly (a medical condition diagnosed before birth that would lead to fetal or neonatal death and for which life-saving medical intervention would be futile)
4. To protect the pregnant female's life or to protect against a physical disorder, illness, or injury

It would also prohibit such restrictions within 18 weeks of fertilization (approximately 20 weeks gestational age, as the AG clarified). And it would amend Arkansas Constitution Amendment 68, Section 2 (the existing pro-life public-policy provision adopted in 1988) to add the words "and the Constitution of the State of Arkansas" so that protecting unborn life is constrained by both the federal and Arkansas constitutions.

The proposal includes detailed definitions: "fatal fetal anomaly," "physical disorder, physical illness, or physical injury" (including life-endangering conditions caused by pregnancy and conditions creating "serious risk of substantial impairment of a major bodily function"), "major bodily function" (including immune, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions), "fertilization" (defined as "the fusion of a human spermatozoon with a human ovum"; the sponsor had originally written "intrauterine fusion" but submitted a revised version omitting that word, which the AG addressed in this opinion), and "abortion services" (medical interventions to end pregnancy, excluding accidental or unintentional injury).

The AG substituted both the popular name (adding "of 2024") and the ballot title with two specific changes:

Fetal age vs. gestational age clarification. The original text used "18 weeks of fertilization" but did not flag for voters that this is roughly 20 weeks gestational age. Many people count weeks of pregnancy from the first day of the last menstrual period (LMP), which precedes fertilization by about two weeks. The AG added "which equates to approximately 20 weeks since the first day of the pregnant female's last menstrual period" to the ballot title.

Effect on existing law. The ballot title must inform voters how the proposal would change existing law. The original ballot title did not explain what Arkansas law currently provides. The AG added language explaining that "current Arkansas law prohibits abortion except to save the life of the pregnant female in a medical emergency, and the current Arkansas Constitution does not restrict the State of Arkansas's authority to regulate abortion services." This is a critical addition because it lets voters compare the status quo to the proposed change.

The AG concluded with the same cautionary footnote he uses for complex measures: long, complex ballot titles are vulnerable to court challenge, and any ambiguity in the text could lead to a successful challenge. Sponsors should be aware of this risk.

A.C.A. § 7-9-108 instructions to canvassers and signers must precede every petition before circulation.

What this means for you

Reproductive rights advocates

The certification clears the proposed amendment for petition circulation. The substantive content of what the amendment would do is unchanged; the AG's substitution focused on transparency to voters (clarifying the gestational-age vs. fetal-age distinction and the change-from-existing-law summary).

Notable features of the proposal as certified:

• Categorical protection in four scenarios (rape, incest, fatal fetal anomaly, life or physical health of the female) with no time limit
• Time-limited protection up to 18 weeks fetal age (approximately 20 weeks gestational age) for any reason
• Detailed definition of "physical disorder, physical illness, or physical injury" includes any condition causing "serious risk of substantial impairment of a major bodily function," which is a broad definition
• "Major bodily function" definition includes immune, neurological, respiratory, circulatory, endocrine, and reproductive functions, expanding the scope of protected health-based abortions
• Amends the existing pro-life public-policy provision (Amendment 68 § 2) so that protecting unborn life is subordinate to both federal and Arkansas constitutional rights

If the proposal made the November 2024 ballot, voters would compare the status quo (near-total ban with narrow life-saving exception) against the proposed framework. The AG's added language ensures voters understand both sides of that comparison.

Obstetricians and healthcare providers

The proposal's "good-faith medical judgment" standard is a significant operational feature. Under the proposed amendment, a physician's good-faith judgment about whether the patient meets the criteria (fatal fetal anomaly, threat to life or physical health) would govern, not a state agency or court determination. This is the same standard that featured in pre-Dobbs federal abortion jurisprudence and in many other state reproductive-rights amendments.

The "physician-assisted abortion services" provision specifies the permitted settings: hospital, emergency department, physician's office or clinic, surgery center, free-standing birthing center, or other licensed healthcare facility. If the amendment passed, providers in any of these settings could perform protected abortion services without state penalty.

Patients and pregnant Arkansans

If you are pregnant in Arkansas in 2024 and beyond, the existing legal framework (Arkansas's near-total ban with a narrow life-saving exception) was the law as of this opinion's issuance. The proposed amendment, if it had passed at the November 2024 election, would have created constitutional protection for abortion services in the four scenarios listed and within 18 weeks of fertilization for any reason.

The "fertilization vs. last menstrual period" clarification is important to read carefully. The 18-week limit measured from fertilization corresponds to roughly 20 weeks measured from the first day of the last menstrual period. Most patients count pregnancy weeks from LMP, so a "18-week" limit using fertilization is more permissive than a "18-week" limit using LMP.

For current information on Arkansas abortion law, consult a licensed Arkansas attorney or the Arkansas Department of Health.

Ballot initiative sponsors

This certification illustrates good drafting practice and AG substitution patterns:

• The sponsor had received a prior opinion (Opinion 2023-107) on an earlier version. The AG noted that Opinion's analysis governed this submission and incorporated it by reference.
• The sponsor responded to specific AG concerns by adding the "fertilization" definition. The AG accepted that change but added gestational-age clarification on top.
• The change-from-existing-law issue is recurrent in AG substitution practice. Always include a clause in your submitted ballot title summarizing the current law your amendment would change. Otherwise the AG has to add it.

Constitutional law attorneys

Bradley v. Hall (1952), cited by the AG, sets out the principle that "in voting upon a constitutional amendment, [the voter] is simply making a choice between retention of the existing law and the substitution of something new." This is the doctrinal basis for requiring ballot titles to summarize existing law. Cite Bradley v. Hall and Dust v. Riviere when arguing about ballot-title sufficiency on this point.

The amendment's interaction with Amendment 68 § 2 (adding "and the Constitution of the State of Arkansas") is a structural feature worth analyzing. Amendment 68 currently subordinates Arkansas's pro-life policy only to the federal Constitution. The proposed change adds Arkansas constitutional rights as a co-constraint. If the amendment had passed, future Arkansas Supreme Court decisions interpreting this provision would have substantial impact.

Common questions

Did this amendment pass?
The opinion only certifies the popular name and ballot title for circulation. Whether the petition collected sufficient signatures, survived sufficiency review, and was approved at the November 2024 election are separate questions. Check the Secretary of State's records or the November 2024 election results for the outcome.

What is the difference between fetal age and gestational age?
Fetal age (sometimes called "post-fertilization age") counts from the moment of fertilization. Gestational age (the more common measure) counts from the first day of the patient's last menstrual period, which precedes fertilization by approximately two weeks. So 18 weeks fetal age equals approximately 20 weeks gestational age.

Why did the AG add the gestational-age clarification?
Because most patients, providers, and laypeople use gestational age. A ballot title that says "18 weeks" without specifying which measure is being used would mislead readers who assume gestational age. The AG fixed this by spelling out both measures.

What is Amendment 68 of the Arkansas Constitution?
Amendment 68, adopted in 1988, contains an Arkansas constitutional public-policy provision favoring the protection of unborn life. Section 2 states that 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." The proposed amendment would add "and the Constitution of the State of Arkansas," subordinating Amendment 68's policy to whatever rights the new amendment creates.

Why did the AG include a cautionary footnote?
Because lengthy, complex ballot titles are more likely to be invalidated by the Arkansas Supreme Court on a sufficiency challenge. The AG was certifying the title but flagging that opponents could still sue to invalidate it. This is a standard caution the AG uses for complex measures (see also Opinion 2024-020 for a parallel caution on the transparency act).

Background and statutory framework

A.C.A. § 7-9-107. AG review of ballot titles and popular names.

A.C.A. § 7-9-108. Mandatory canvasser-and-signer instructions on petitions.

Existing Arkansas abortion statutes. A.C.A. §§ 20-16-1402 through -1406 use fetal age. A.C.A. §§ 20-16-1702, 20-16-1902, 20-16-2002, 20-16-2004 use gestational age. The mixed usage in existing statutes is why the AG flagged the importance of clarifying which measure the ballot title means.

Ark. Const. art. 5, § 1 (Amendment 7). Initiative power.

Ark. Const. amend. 68, § 2. Existing pro-life public-policy provision (1988). Amended by the proposal.

Ballot-title sufficiency standards. May v. Daniels (2004), Dust v. Riviere (1982), and Bradley v. Hall (1952) supply the doctrinal framework for ballot-title clarity and the requirement to inform voters about the change from existing law.

Prior opinion on this measure. Opinion 2023-107 addressed an earlier version, with the AG's standards explained at length and incorporated here.

Citations

• A.C.A. § 7-9-107
• A.C.A. § 7-9-108
• A.C.A. §§ 20-16-1402 through -1406 (fetal-age abortion statutes)
• A.C.A. §§ 20-16-1702, 20-16-1902, 20-16-2002, 20-16-2004 (gestational-age abortion statutes)
• Ark. Const. art. 5, § 1 (Amendment 7)
• Ark. Const. amend. 68, § 2 (existing pro-life policy provision)
• May v. Daniels, 359 Ark. 100, 116, 194 S.W.3d 771, 783 (2004)
• Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982)
• Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470, 471 (1952)
• Ark. Att'y Gen. Op. 2023-107 (prior version of the same amendment)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2024-004
January 23, 2024
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 (A) IN CASES OF RAPE, (B) IN CASES OF INCEST, (C) IN THE EVENT OF A FATAL FETAL ANOMALY, OR (D) WHEN, IN A PHYSICIAN'S GOOD-FAITH MEDICAL JUDGMENT, ABORTION SERVICES ARE NEEDED TO PROTECT A PREGNANT FEMALE'S LIFE OR TO PROTECT A PREGNANT FEMALE FROM A PHYSICAL DISORDER, PHYSICAL ILLNESS, OR PHYSICAL INJURY; 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 PHYSICIAN'S GOOD-FAITH MEDICAL JUDGMENT, WILL LEAD TO FETAL OR NEONATAL DEATH FOR WHICH LIFE-SAVING MEDICAL INTERVENTION WOULD BE FUTILE; "PHYSICAL DISORDER, PHYSICAL ILLNESS, OR PHYSICAL INJURY" INCLUDES, WITHOUT LIMITATION, A LIFE-ENDANGERING PHYSICAL DISORDER, PHYSICAL ILLNESS OR PHYSICAL INJURY CAUSED BY OR ARISING FROM THE PREGNANCY ITSELF AND ANY SITUATION IN WHICH CONTINUATION OF A PREGNANCY WILL CREATE A SERIOUS RISK OF SUBSTANTIAL IMPAIRMENT OF A MAJOR BODILY FUNCTION OF A PREGNANT FEMALE; "MAJOR BODILY FUNCTION" INCLUDES, WITHOUT LIMITATION, 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 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.

(Footnote: After submitting your proposed measure for my review, you submitted a substituted measure that changed the definition of "fertilization" by omitting the word "intrauterine" from the phrase "intrauterine fusion of a human spermatozoon with a human ovum." This opinion addresses your substituted measure.)

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.

3. Application. Having reviewed the text of your proposed constitutional amendment, as well as your proposed popular name and ballot title, my statutory duty at this stage is to substitute and certify the popular name and ballot title indicated below. With regard to your proposed ballot title, I believe the following minor changes are necessary to ensure that the ballot title clearly and accurately sets forth the purpose of your proposed initiated amendment to the Arkansas Constitution:

• Fetal age vs. gestational age. In Attorney General Opinion 2023-107, I noted that your proposed text prohibiting government action that would "prohibit, penalize, delay, or restrict access to abortion within 18 weeks of conception…" was keyed to fetal age, which begins at conception, rather than gestational age, which begins on the first day of the female's last menstrual cycle. Calculating the number of weeks using fetal age is not a reason to reject your submission as misleading; indeed, Arkansas statutes regulating abortion use both fetal age and gestational age. But because gestational age is frequently used to count the weeks of pregnancy, I explained that if your proposal were at the stage where it could be certified, I would have to substitute language in your ballot title flagging the difference in time frames. In this third submission, you have replaced "conception" with "fertilization," and you have provided a definition of "fertilization." But this change does not highlight the difference between fetal age and gestational age for voters. Therefore, to ensure that no voter is misled by this portion of the ballot title, I have added language clarifying that 18 weeks after fertilization equates to approximately 20 weeks since the first day of the pregnant female's last menstrual period.

• Effect on existing law. In addition to accurately summarizing the proposed measure's text, the ballot title must sufficiently inform voters as to how the proposed measure would change existing law. Your revised text and ballot title explain how the proposed amendment would affect Amendment 98, and they declare other laws that conflict with the proposed amendment null and void. But there is no other mention of how Arkansas law currently regulates abortion. While "a ballot title is not insufficient merely because it fails to reflect the current state of the law," it must give still voters a clear understanding of the "extent and import" of the proposal so that they can "make an intelligent choice, fully aware of the consequences of their vote." As the Arkansas Supreme Court has explained, "It is the function of the ballot title to provide information concerning the choice that [a voter] is called upon to make," which, "in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new." To ensure your ballot title adequately conveys the proposed change in law so that voters have a fair understanding of the issue, I have added language to your ballot title.

With these changes incorporated, the following popular name and ballot title are substituted and certified:

Popular Name
Arkansas Abortion Amendment of 2024

Ballot Title
An amendment to the Arkansas Constitution to change Arkansas law regarding abortion; current Arkansas law prohibits abortion except to save the life of the pregnant female in a medical emergency, and the current Arkansas Constitution does not restrict the State of Arkansas's authority to regulate abortion services to protect the health and safety of the pregnant female or for other purposes; this amendment changes Arkansas law by amending the Arkansas Constitution to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services (1) in cases of rape, (2) in cases of incest, (3) in the event of a fatal fetal anomaly, or (4) when, in a physician's good-faith medical judgment, abortion services are needed to protect a pregnant female's life or to protect a pregnant female from a physical disorder, physical illness, or physical injury; to provide that 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, which equates to approximately 20 weeks since the first day of the pregnant female's last menstrual period; to define a "fatal fetal anomaly" as a medical condition diagnosed before birth that, in a physician's good-faith medical judgment, will lead to fetal or neonatal death and for which life-saving medical intervention would be futile; to define "physical disorder, physical illness, or physical injury" to include, without limitation, (1) a life-endangering physical disorder, physical illness, or physical injury caused by or arising from the pregnancy itself and (2) any situation in which continuation of a pregnancy will create a serious risk of substantial impairment of a major bodily function of a pregnant female; to define "major bodily function" to include, without limitation, (1) functions of the immune system, (2) normal cell growth, (3) digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions, and (4) operation of an individual organ within a body system; to define "fertilization" as the fusion of a human spermatozoon with a human ovum; to define "abortion services" as medical interventions provided to a pregnant female to end the medical condition of pregnancy but not to include accidental or unintentional injury or death of an embryo or fetus before birth; to provide that abortions services assisted by a physician may be provided in a hospital, emergency department, a physician's office or clinic, a surgery center, a free-standing birthing center, or other licensed healthcare facility; to provide that section 2 of Amendment 68 of the Arkansas Constitution is amended to add the phrase "and the Constitution of the State of Arkansas," and would read as follows: "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"; to declare that all provisions of the constitution, statutes, and common law of the State of Arkansas are null and void to the extent they conflict with any provision of this amendment; to provide that this amendment shall be self-executing; and to provide that any provision of this amendment that is held to be invalid shall be severable from the remaining provisions of this amendment.

While the foregoing have been substituted and certified, I believe that, in light of the significance of the subject matter undertaken and the potential complexity and far-reaching effects of this proposal, a cautionary note is warranted. You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot-title challenge. Any ambiguity in the text of a measure could lead to a successful court challenge. Significant changes in law often have unintended consequences that, if known, would give voters serious ground for reflection.

Under A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and the associated penalties for violations. I have included a copy of the instructions that should be incorporated into your petition before circulation.

Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General