Does the Arkansas State Medical Board's Rule 36 (which governs abortion procedures) define 'gestational age' and 'medical emergency' the same way the Arkansas Code does, and what happens when a rule's definitions don't match the statutes the rule is implementing?

Subject

Whether Rule 36 of the Arkansas State Medical Board's Rules ("Rules Governing Procedures for Abortions") conflicts with the Arkansas Code's definitions of abortion-related terms.

Plain-English summary

Representative Mary Bentley asked the AG whether the Medical Board's Rule 36 conflicts with current Arkansas statutes governing abortion. The AG analyzed Rule 36 in three buckets:

Bucket 1: Mirrored statutory language. Most of Rule 36's substantive conduct provisions are essentially copied from the relevant statutes (Rule 36(A)–(E) is identical to A.C.A. § 20-16-1303, for example). Where Rule 36 mirrors statute verbatim, there's no conflict. The "Informed Consent Requirement" portion of Rule 36 grafts language from §§ 20-16-1703, -1704, -2304, and -2503; the AG concluded the grafting is consistent with statutory requirements.

Bucket 2: Undefined statutory terms. Some Rule 36 definitions (like "Final printed labeling" and "Mifeprex regimen") cover statutory terms that once had statutory definitions but were repealed (Act 562 of 2021 repealed but didn't replace these). When statutory terms become undefined, courts apply plain meaning (per State v. Jernigan, 2011 Ark. 487, 385 S.W.3d 776). The AG concluded Rule 36's retained definitions for these terms don't conflict with the Code.

Bucket 3: Statutory terms with multiple definitions. Some terms are defined many times across Title 20, Chapter 16. "Abortion" is defined 16 times. "Medical emergency" is defined 10 times. Rule 36 tries to harmonize these multiple definitions. The AG concluded:

• "Abortion" in Rule 36(F)(1) (a 176-word, single-sentence definition combining the 16 statutory definitions) doesn't facially conflict with the Code's definitions.

• "Medical emergency" in Rule 36 partially conflicts. Six statutory definitions are essentially identical to Rule 36's. Three are different but cover conduct Rule 36 doesn't regulate. But A.C.A. § 20-16-1302(6) (the heartbeat-test statute) defines "medical emergency" to include "a condition in which an abortion is necessary … [d]ue to the existence of a highly lethal fetal disorder as defined by the Arkansas State Medical Board." Rule 36 omits the highly-lethal-fetal-disorder element. So Rule 36's exception from the fetal-heartbeat test is narrower than the statute's, which is a substantive conflict.

• "Gestational age" in Rule 36 conflicts with the Code. The rule combines "gestational age" (time since the woman's last menstrual period; A.C.A. §§ 20-16-1102(3), -1503(4), -1702(9)) with "post-fertilization age" (time since fertilization; A.C.A. § 20-16-1402(6)) into one definition. These two calculations differ by approximately two weeks. A physician documenting "gestational age" using the post-fertilization calculation would comply with Rule 36 (which permits both) while violating § 20-16-1504, which specifically requires "gestational age" measured from the last menstrual period.

So Rule 36 has two specific conflicts with the Arkansas Code: the medical-emergency exception is narrower than the statute requires, and the gestational-age definition mashes together two distinct statutory calculations.

What this means for you

Obstetricians and gynecologists practicing in Arkansas

Where Rule 36 and the Arkansas Code conflict, the statute governs. So:

On medical-emergency determinations for the heartbeat test. The statute (§ 20-16-1302(6)(B)) includes "highly lethal fetal disorder" as a qualifying medical emergency that exempts the patient from the heartbeat test. Rule 36's narrower definition can't constrict that statutory exception. A physician applying the statute's broader medical-emergency definition is acting within the law even if Rule 36 reads more narrowly.

On documenting gestational age. § 20-16-1504 requires you to document gestational age measured from the woman's last menstrual period. That's the calculation that goes in the chart. If you've been documenting post-fertilization age based on Rule 36's combined definition, you're at risk of a § 20-16-1504 violation. Practical fix: document by last-menstrual-period (LMP) calculation. If you also need post-fertilization age for some other reason, document that separately as a different field.

These are sensitive practice areas with real penalties. Statutory violations can lead to disciplinary action by the Medical Board, civil liability, and in some cases criminal exposure. Confer with your hospital legal counsel about chart conventions if there's any ambiguity in the records.

Hospital compliance officers

Audit your protocols against the underlying statutes (not just Rule 36). The AG opinion identifies two specific spots where Rule 36 deviates from the Code. Update your forms, documentation conventions, and clinical pathways to follow the statute, since when the rule and statute conflict, the statute wins.

Be aware that other portions of Title 20, Chapter 16 may have similar issues. The AG only addressed "medical emergency" and "gestational age" because the Representative specifically asked about those. Other terms with multiple statutory definitions (especially "abortion," which is defined 16 times) could have analogous tensions.

Medical Board attorneys and regulatory drafters

Rule 36 needs amendment to align with statutes on the two flagged points. The fix for "medical emergency" is to incorporate the highly-lethal-fetal-disorder element from § 20-16-1302(6)(B). The fix for "gestational age" is to define it as time-since-LMP only, and to define "post-fertilization age" separately for the contexts (§ 20-16-1402) where that's the relevant calculation.

When statutes have multiple definitions of a term across different sections, the choice is usually to use the term consistently across the rule with cross-references, or to use distinct sub-definitions within the rule that map to specific statutory contexts. Mashing definitions together is a practice the AG flagged here as creating substantive conflict.

State legislators

If you want to harmonize the multiple statutory definitions of "abortion" or "medical emergency" or "gestational age," you can do that by amendment. Until then, the AG opinion treats the multiple statutory definitions as each binding within its own statutory context.

Patients seeking abortion-related care

The legal framework here is complex, and physicians and hospitals are working under multiple overlapping statutes. The bottom line for patients: the Arkansas Code is what governs. If a physician relies on Rule 36 and Rule 36 is narrower than the Code (as with the medical-emergency exception), the Code's broader provision can still be invoked. This may matter for access to care in genuinely dangerous medical situations. Talk to your physician and a healthcare attorney if you're navigating a complex case.

Common questions

Q: When a rule conflicts with a statute, which one wins?

The statute. Administrative rules can't expand or contract the statute they implement. If Rule 36's medical-emergency definition is narrower than § 20-16-1302(6)(B)'s, the statute governs and the rule's narrower scope is unenforceable to the extent of the conflict.

Q: Why are there 16 different definitions of "abortion" in Arkansas law?

Because abortion-related statutes have been added piecemeal over decades, and each act often included its own definitions. Without a unified glossary, the same term has accumulated multiple definitions, each operating within its own statutory section.

Q: What's the difference between "gestational age" and "post-fertilization age"?

Gestational age is calculated from the first day of the woman's last menstrual period. Post-fertilization age is calculated from the date of fertilization. Because fertilization typically occurs around two weeks after the first day of the last menstrual period, gestational age is approximately two weeks ahead of post-fertilization age for the same pregnancy.

Q: How does this opinion affect actual patient care?

Practically, physicians need to use statutory definitions where they conflict with Rule 36. For the medical-emergency exception, that means including highly lethal fetal disorder. For gestational-age documentation, that means using last-menstrual-period calculation for § 20-16-1504 compliance.

Q: Does this opinion say abortion is legal in Arkansas?

The opinion is purely about whether Rule 36 conflicts with the Code, not about the substantive legality of abortion procedures. The substantive law (which restricts abortion to narrow circumstances) is set by statute and would have to be addressed separately. The AG opinion is technical regulatory analysis.

Q: What about other Medical Board rules?

The opinion only addresses Rule 36. Other Medical Board rules might have similar drafting issues, but those weren't briefed.

Background and statutory framework

Title 20, Chapter 16 of the Arkansas Code contains the state's reproductive-health and abortion statutes. The chapter has been built up over many sessions through separate acts, each often bringing its own definitions of key terms. The result is multiple definitions of "abortion" (16 times), "medical emergency" (10 times), "gestational age" (multiple), and others.

The Arkansas State Medical Board's Rule 36 ("Rules Governing Procedures for Abortions") implements parts of Title 20, Chapter 16 by establishing physician obligations. The Rule has three structural pieces: (1) substantive conduct rules that often mirror statute verbatim; (2) definitions for terms whose statutory definitions were repealed; (3) definitions for terms with multiple statutory definitions, which Rule 36 attempts to harmonize.

State v. Jernigan, 2011 Ark. 487, 385 S.W.3d 776, holds that statutory terms without a definition retain their plain meaning. So when Act 562 of 2021 repealed but didn't replace certain definitions, the rule's retention of similar definitions is consistent with what plain-meaning analysis would produce.

A.C.A. § 20-16-1302(6) defines "medical emergency" for the fetal-heartbeat-test statute (§ 20-16-1303). One of its prongs (subsection (B)) covers "[d]ue to the existence of a highly lethal fetal disorder as defined by the Arkansas State Medical Board." This is a key bridge: the statute requires the Board to define highly lethal fetal disorders, but Rule 36 omits that prong from its broader medical-emergency definition.

A.C.A. § 20-16-1504(c)(4) requires documentation of "gestational age" using the last-menstrual-period calculation. A.C.A. § 20-16-1402(6) defines "post-fertilization age." Rule 36's combined definition allows physicians to document either, but § 20-16-1504 specifies one method for that statute's compliance.

The opinion implicates a recurring administrative-law issue: when an agency tries to harmonize conflicting or multiple statutory definitions, the harmonization itself can create tensions with the underlying statutes if the agency picks language that doesn't track every statutory variant.

Citations

• A.C.A. § 20-16-1302(6) (definition of "medical emergency" for heartbeat-test statute, including highly-lethal-fetal-disorder prong)
• A.C.A. § 20-16-1303 (heartbeat-test statute)
• A.C.A. § 20-16-1402(6) (definition of "post-fertilization age")
• A.C.A. §§ 20-16-1102(3), -1503(4), -1702(9) (definitions of "gestational age" using last-menstrual-period)
• A.C.A. § 20-16-1504(c)(4) (documentation of gestational age in medical chart)
• A.C.A. § 20-16-1703 (informed-consent framework)
• A.C.A. §§ 20-16-1704, -2304, -2503 (later-enacted informed-consent requirements)
• A.C.A. §§ 20-16-602(b)(1), -603(a)(1), -604(a)(1), -702(1), -803(1), -1102(1)(a), -1402(1), -1503(1), -1601(1), -1702(1), -1802(1), -1903(1), -2003(1), -2102(1), -2303(1), -2402(1) (16 statutory definitions of "abortion")
• A.C.A. §§ 20-16-602(b)(3), -803(6), -1102(4), -1302(6), -1402(4)(A), -1702(11), -2003(7), -2303(3), -2402(7), -2502(2) (10 statutory definitions of "medical emergency")
• Arkansas State Medical Board Rule 36
• Act 562 of 2021 (repeal of certain definitions including "Final printed labeling" and "Mifeprex regimen")
• State v. Jernigan, 2011 Ark. 487, at 8, 385 S.W.3d 776, 781 (plain meaning of undefined statutory terms)
• AGOps. 2024-004, 2023-107 (LMP vs. fertilization-date discussion)

Source

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

Original opinion text

Opinion No. 2025-013
May 6, 2025

The Honorable Mary Bentley
State Representative
142 Shady Lane
Perryville, Arkansas 72126

Dear Representative Bentley:

You have requested my opinion about Rule 36 of the Arkansas State Medical Board's Rules. You note a "concern that Rule 36 does not provide or reflect the proper and correct definitions of abortion and its related terms, as dictated and reflected by the laws passed by the General Assembly."

Against this background, you ask: Does Rule 36 of the Rules of the State Medical Board conflict in any way with current state law as it pertains to abortion and related procedures? (You also ask: (1) "Does Rule 36 of the Rules of the State Medical Board properly and correctly define the term 'abortion' as reflected by current state law?" and (2) "Based upon potentially conflicting terminology, when does a medical emergency exist under Rule 36 of the State Medical Board?" Because these two questions are subsumed by the question quoted above, I address these two in response to that question.)

Brief response: Yes. Rule 36's definitions of "medical emergency" and "gestational age" partially conflict with the Arkansas Code.

DISCUSSION

Rule 36, titled "Rules Governing Procedures for Abortions," can be separated into three buckets: (1) provisions that mirror statutory language, (2) definitions for undefined statutory terms, and (3) definitions for terms with multiple statutory definitions.

1. Mirrored Statutory Language. The conduct regulated by Rule 36 is predominately copy and pasted from various statutes. For example, Rule 36(A)–(E) is identical to A.C.A. § 20-16-1303. The portions of Rule 36 that precisely mirror statute do not conflict with the Arkansas Code.

One variation on Rule 36's copy-and-paste approach is the "Informed Consent Requirement." The framework for this requirement is copied from A.C.A. § 20-16-1703. The Rule then grafts in later-enacted informed-consent requirements from A.C.A. §§ 20-16-1704, -2304, and -2503. In my opinion, this grafting is consistent with the statutory requirements.

2. Undefined Statutory Terms. Next, a few definitions in Rule 36 apply to undefined statutory terms that once had statutory definitions but that were repealed and not replaced. (See, e.g., Act 562 of 2021, § 1, repealing but not replacing definitions of "Final printed labeling" and "Mifeprex regimen," among others.) Rule 36 retained the repealed definitions. Undefined statutory terms retain their plain meaning. In my opinion, these definitions in Rule 36 do not conflict with the Code.

3. Statutory Terms with Multiple Definitions. Some terms are defined multiple times in Title 20, Chapter 16 of the Arkansas Code. In your request, you specifically mention the definitions of "abortion" and "medical emergency." Both of these are defined multiple times.

The word "abortion" is defined 16 times within Title 20, Chapter 16. Rule 36(F)(1) tries to harmonize these 16 definitions by combining them into a unified "abortion" definition. While this 176-word, single-sentence definition is somewhat difficult to follow, there is not a facial conflict between Rule 36(F)(1) and the multitude of "abortion" definitions in the Arkansas Code.

Similarly, the term "medical emergency" is defined 10 times in Chapter 16 of Title 20. Rule 36 defines "medical emergency" as a "condition which, on the basis of the physician's good-faith clinical judgment, complicates the medical condition of a pregnant woman and necessitates the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function."

Six of the statutory definitions for "medical emergency" are almost identical to this definition. Three are somewhat different from Rule 36, but Rule 36 does not regulate the conduct to which those definitions apply. But as explained below one partially conflicts with Rule 36's definition.

Under A.C.A. § 20-16-1303 and Rule 36, before performing an abortion, a person must "determine whether the fetus that the pregnant woman is carrying possesses a detec[a]ble heartbeat." Statutorily, the Medical Board must adopt rules to "specify that a test for fetal heartbeat is not required in the case of a medical emergency." For this purpose, the Code defines "medical emergency" in part as "a condition in which an abortion is necessary … [d]ue to the existence of a highly lethal fetal disorder as defined by the Arkansas State Medical Board." Rule 36's definition of "medical emergency," however, does not include situations in which there is a highly lethal fetal disorder.

Finally, only one other definition in Rule 36 conflicts with the Code. The Rule's definition of "gestational age" improperly combines "gestational age" in A.C.A. §§ 20-16-1102(3), -1503(4), and -1702(9) with "post-fertilization age" in § 20-16-1402(6). Compare Rule 36 with the statutes:

• Rule 36 "Gestational Age": "The time that has elapsed since the first day of the woman's last menstrual period or as stated in Act 171 of 2013, which prohibits abortions after 20 weeks, which also uses the term 'post-fertilization' age."
• Arkansas Code "Gestational Age": "The time that has elapsed since the first day of the woman's last menstrual period." (See also A.C.A. § 20-16-1102(3) defining "gestational age" as "the age of the unborn child as calculated from the first day of the last menstrual period of the pregnant woman.")
• Arkansas Code "Post-fertilization Age": "The age of the unborn child as calculated from the fertilization of the human ovum."

As I have noted in previous opinions, there is about two weeks' difference between the date of a pregnant woman's last menstrual period and the date of fertilization. Thus, combining both calculations into one definition injects ambiguity. For example, both Rule 36 and § 20-16-1504 require a physician, before providing an abortion-inducing drug, to "[d]ocument in the pregnant woman's medical chart or record the gestational age." But because of the different definitions of "gestational age," a physician that documented the post-fertilization age would be complying with Rule 36, while violating § 20-16-1504, which requires documentation of the age based on the woman's last menstrual period.

Therefore, it is my opinion that Rule 36's definitions of "medical necessity" and "gestational age" partially conflict with the Arkansas Code.

Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General