Arkansas doctors could be sued over banned abortion method

LITTLE ROCK, Ark. -- Does an Arkansas law allow husbands to sue doctors to prevent their wives from undergoing a newly banned abortion procedure?

Abortion opponents say no, and a group preparing to challenge the ban said it's theoretically possible but unlikely.

The question has come up amid attention on an Arkansas law approved last month that bans dilation and evacuation, or "D&E," that abortion-rights supporters say is the safest and most common procedure used in the second trimester.

The law allows spouses, parents and legal guardians of women who have undergone or attempted to undergo a D&E abortion to seek a civil injunction preventing the doctor from performing the procedure again.

The little-noticed clause is included in similar bans in several other states, but Arkansas' law has prompted a backlash on social media.

The ban does not include exceptions for rape or incest, and some people have incorrectly claimed it would allow rapists to sue their victims. Some have wondered whether it would allow husbands to prevent their wives from getting a D&E abortion, even in cases of spousal rape.

National Right to Life, which has been pushing for the ban in several states, said a spouse could try to prevent the doctor from performing the banned procedure on anyone again only if it had been performed or attempted on the spouse's wife.

"Sometimes when criminal penalties fail, this is another tool that provides more effectiveness," said Ingrid Duran, director of state legislation for the National Right to Life Committee.

The woman or her health-care provider also could seek an injunction against a doctor. The law wouldn't allow for lawsuits to block abortion procedures that are still legal and wouldn't allow a suit against the woman undergoing the banned procedure.

Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, said the provision could theoretically be used by husbands to try to prevent their wives from getting a D&E abortion. But Dickson said the risk of such a suit is low and pales compared to the bigger concern the measure criminalizes a common abortion procedure.

"If it takes effect, no doctor is going to violate the law, and therefore it's unlikely that someone would try to use this part of the law to stop the woman and other women from getting a D&E abortion," Dickson said. Doctors who violate the law would face up to six years in prison and up to a $10,000 fine.

Dickson said the group plans to sue to overturn the law before it takes effect later this year.

The prohibition also allows lawsuits against doctors who have performed D&E abortions, but damages could not be awarded if the woman's pregnancy resulted from the plaintiff's criminal action. So a rapist could not seek damages from a doctor who performed the abortion.

Similar D&E prohibitions are in effect in Mississippi and West Virginia. Bans in Kansas, Oklahoma, Alabama and Louisiana have been blocked by courts. National Right to Life says similar measures have been introduced in South Carolina, Missouri, Texas, Rhode Island and Pennsylvania.

Most of the D&E bans, like other abortion restrictions, allow people to sue for an injunction or damages. National Right to Life says that ensures the prohibitions will be enforced.

But it also raises concerns about an indirect effect on legal procedures.

"By allowing a woman or her family to sue it could have a chilling effect on providers even when they're performing the procedure within the bounds of the law," said Elizabeth Nash, senior state issues manager for the Guttmacher Institute, a research center that supports abortion rights.