Region & State

Ark. Legislature saw wide range of maternal, reproductive health legislation in 2023

By TESS VRBIN | Arkansas Advocate

Prenatal and postpartum healthcare policies rose on Arkansas’ priority list after abortion became illegal in the state, but did not rise high enough, according to advocates for the well-being of pregnant and newborn Arkansans.

Rep. Aaron Pilkington, R-Knoxville, introduced several bills to bolster this area of healthcare during the 2023 legislative session. Some made it to Gov. Sarah Huckabee Sanders’ desk while others did not.

Pilkington said Arkansas policymakers should “put our money where our mouth is” in light of the abortion ban.

Rep. Aaron Pilkington

“The next fight is to take care of mothers and children so they have what they need in order to have happy and healthy pregnancies,” he said.

Improving outcomes for pregnant Arkansans and their babies was within the state’s ability but not important enough to most lawmakers this legislative session, said Laura Kellams, Northwest Arkansas director of Arkansas Advocates for Children and Families.

“We have the highest maternal mortality rate, so we should be prioritizing [these policies] the most, but we didn’t,” Kellams said.

Arkansas was one of several states with a “trigger law” that banned abortion in June 2022 almost immediately after the U.S. Supreme Court overturned Roe v. Wade and left abortion access up to individual states. The only exception to Arkansas’ ban is to save the life of the mother in a “medical emergency.”

Pilkington sponsored an unsuccessful attempt to expand postpartum Medicaid coverage in Arkansas from 60 days to 12 months after birth. He also sponsored a law requiring physicians to offer postpartum depression screenings to new mothers and requiring Medicaid to cover the screenings, as well as a bill that Sanders signed last week to require Medicaid to cover depression screenings for women during pregnancy.

Many other bills related to maternal health, including potential changes to the state’s abortion law, saw mixed results as well.

Rep. Ashley Hudson, D-Little Rock, proposed an exception to the abortion ban for child victims of incest; the bill was rejected in committee. Hudson also proposed support systems in public schools for pregnant and parenting teenagers. That bill passed the Legislature without a single “no” vote and was signed into law in February.

“If you’re trying to encourage action or inaction, people respond better to carrots than they do to sticks,” Hudson said in an interview. “You see significant benefits when you have programs to support screenings, postpartum care [and similar things]. You have fewer abortions and better outcomes overall when you support moms and children rather than threatening them and putting them at risk.”

Pilkington’s postpartum depression screening bill was signed into law in March. Another bill that Sanders has signed will require all newborns in Arkansas to be screened for certain rare health conditions as recommended by the U.S. Department of Health and Human Services.

Ali Taylor, president of the Arkansas Abortion Support Network, said she found the timing of these policies “interesting.”

“While those were great bills to pass, I have to ask, why now?” Taylor said. “Why were these not priorities years ago?”

Prenatal and postpartum Medicaid coverage

After Roe v. Wade was overturned by Dobbs v. Jackson in June, Kellams wrote a blog post on the AACF website listing maternal and child health policy options that she described as “low-hanging fruit” and of minimal cost to the state. She suggested requiring presumptive Medicaid eligibility for pregnant Arkansans and extending postpartum Medicaid coverage to a year after birth.

Pilkington sponsored bills that would have created both policies, and he said neither advanced because of cost concerns.

The Republican-controlled Legislature approved several initiatives that Sanders, also a Republican, said were high priorities for her administration, including a criminal sentencing and parole restructure, an education overhaul law and more than $100 million in tax cuts. Pilkington said in February that the financial impact of Sanders’ priorities would determine whether maternal health legislation pertaining to Medicaid would fit in the state’s budget.

The Arkansas Department of Education has estimated the education overhaul legislation will cost $297 million in the first year and $343 million in the second year of implementation. Additionally, Kellams pointed out that extending postpartum Medicaid coverage would have cost less than $2 million, a tiny fraction of the tax cuts that Sanders signed into law.

“When we talk about fiscal impact, we’re talking about priorities that we’re setting,” Kellams said. “We don’t have to throw up our hands and say we don’t have the money. We’re choosing not to have the money for this.”

Several other states, including some led by Republicans, have enacted both Medicaid policies. A provision in the federal American Rescue Plan Act of 2021 gives states the option to extend Medicaid postpartum coverage to 12 months after birth. As of April 10, 42 states had applied for this option to some extent.

Another bill Pilkington sponsored would have required the insurance reimbursement rate for all births in Arkansas to be equal, since the rate for Cesarean sections currently exceeds the rate for normal births. Kellams said AACF supported the bill because the high frequency of C-sections in Arkansas contributes to maternal mortality.

The bill did not advance, Pilkington said, because it might have caused insurance premiums throughout Arkansas to spike, and not just for Medicaid enrollees.

Pilkington and Kellams both said the long-term savings under these proposed policies should make up for any short-term costs to the state.

“It’s hard to quantify that, but I hope we can do that over the next few years,” Pilkington said. “The current state of things is costing us money.”

He and Kellams agreed that House Bill 1385 is a prime example of a policy that will economically benefit the state later on. The bill requires Medicaid to cover long-acting reversible contraception for postpartum mothers. It had bipartisan sponsorship and Sanders signed it Thursday.

“Good contraceptive legislation is good for the state in the long term, and I hope this drove that home,” Kellams said.

Pilkington said he plans to reintroduce in a future session the bills he sponsored that were unsuccessful this year.

“I want Arkansas to go from one of the worst states to have children to one of the best states to have children,” he said.

Abortion and maternity leave

State employees currently receive only four weeks of paid maternity leave. Sen. Missy Irvin, R-Mountain View, sponsored the bill to create this policy in 2017.

Irvin sponsored a bill this year that would increase these employees’ maternity leave to 12 weeks. She said the original policy was a pilot program of sorts, with the goal of extending it after a few years.

Sen. Missy Irvin, R-Mountain View
Sen. Missy Irvin

“We’re just trying to be more responsive to women and our needs,” Irvin said. “We haven’t always focused on that [in Arkansas].”

Irvin chairs the Senate Public Health, Welfare and Labor Committee, which twice rejected a bill from Pilkington that would have required companies that pay for employees to receive abortions in other states to also provide 12 weeks of paid maternity leave.

Some national corporations — including Kroger, Uber, Starbucks and several banks — announced after the Dobbs v. Jackson ruling that they would cover travel costs or the abortion procedure itself for employees who live in states where abortion is restricted. Not all of those companies provide paid maternity leave, so Pilkington introduced House Bill 1006 to combat what he called “hypocrisy.”

The bill failed the first time in February and again in March. Senators from both parties, including Irvin, expressed concerns about state law telling private businesses what to do.

Other bills filed as responses to the state’s abortion ban were more successful. Before the trigger law went into effect, Arkansas law required abortion clinics to be licensed. Irvin sponsored a bill to repeal the licensing requirement, and it became law in February.

Pilkington sponsored a follow-up bill, which also passed the Legislature, to specify that abortions to save the life of the mother would only be legal if they are performed in a hospital or emergency room.

State law had also required doctors to show ultrasound images to pregnant patients seeking abortions, and Irvin sponsored a bill to amend the law so it would apply to doctors providing referrals for abortion services out of state. Sanders signed it into law on Thursday.

Those and other abortion-related bills sponsored by Republicans were technical corrections “to clean up code to reflect the current situation,” Irvin said.

Taylor said she thought some of these bills were “unnecessary” and passed “just because” the Legislature could do so.

“The trigger law pretty much covered the existing laws that were being tweaked,” she said.

Two bills meant to restrict medication-induced abortion were introduced late in the session by Rep. Wayne Long, R-Bradford. One would have banned chemical abortions and the other would have increased the criminal penalties for violating state law regarding abortion-inducing drugs.

Neither bill was heard in committee, but Taylor called them “a kick in the teeth” to those who support abortion access, since the bills were filed while a federal judge in Texas was considering whether to ban the abortion drug mifepristone. Judge Matthew Kacsmaryk ruled against the drug on April 7 just hours after the Arkansas Legislature adjourned.

The U.S. Department of Justice has since appealed the ruling. On Friday, U.S. Supreme Court Justice Samuel Alito temporarily blocked any changes in access to mifepristone.

Additionally, Sanders on Thursday signed a bill that allows revocation of physicians’ medical licenses if they are found to have violated Arkansas’ abortion-inducing drugs law.

 Karen Musick, right, shares anecdotes of Arkansans who have had abortions before the House Judiciary Committee on March 30, 2023. Musick spoke in favor of House Bill 1684, sponsored by Rep. Denise Garner (left), D-Fayetteville, to add an exception to the state’s abortion ban. | Tess Vrbin/Arkansas Advocate

Hudson’s proposed incest exception to the state’s abortion ban was one of three potential exceptions to fail in committee. A bill from Rep. Nicole Clowney, D-Fayetteville, would have allowed physicians to induce labor in rare cases when a fetus has a health condition “incompatible with life.”

Another bill from Rep. Denise Garner, D-Fayetteville, would have expanded the law’s definition of a “medical emergency” to include the health of the mother. Taylor spoke in favor of the bill before the House Judiciary Committee voted it down.

Republican legislators said they believed adding more exceptions to the abortion ban would essentially make abortion legal again in Arkansas. Hudson said she disagreed.

“Recognizing that there is a valid need [for some abortions] doesn’t mean we’re opening the floodgates,” she said.

Two more abortion-related bills were never heard in committee: one to charge abortion recipients and their doctors with homicide, and one to create tax credits for fetuses.

Taylor said both bills might foreshadow future efforts to legally classify fetuses as people, especially after Kacsmaryk’s mifepristone ruling implied such a viewpoint.

“Right now it’s the standard not to impose penalties on people who have had abortions, but the fringe groups will keep pushing,” Taylor said.

“Inconsistent” policies

Hudson’s Support for Pregnant and Parenting Students Act had 13 total sponsors in both the House and Senate, including Pilkington and six other Republicans. AACF also expressed support for the legislation.

The law requires schools to excuse absences for both teenage parents due to labor and delivery, prenatal and postnatal doctors’ appointments, and legal appointments regarding adoption or custody, among other things. Schools are also required to provide local daycare information to teenage parents and to designate a private space for lactating students to pump and breastfeed.

Olivia Gardner, Rep. Ashley Hudson
Olivia Gardner (left) from Arkansas Advocates for Children and Families speaks in favor of Rep. Ashley Hudson’s (right, D-Little Rock) bill supporting pregnant and parenting students during the House Education Committee meeting on Feb. 7, 2023. | Antoinette Grajeda/Arkansas Advocate

Hudson said she drafted the policy so it would cost as little money as possible.

Meanwhile, the state is set to direct $1 million in taxpayer funds to pregnancy resource centers for the second year in a row under a bill that prohibits awarding the money to entities that “perform, prescribe, provide referrals for, or encourage abortion.”

Last year’s grant money went to a total of 23 “crisis pregnancy centers,” adoption agencies and maternity homes. Many of these organizations are religiously affiliated, and they planned to use the money for digital and physical advertising, baby supplies and parenting classes, among other things.

Hudson said she voted for the bill to reboot the grant fund because low-income and teenage parents need greater access to essentials like diapers and baby clothes.

“A good pro-life policy would have included these women a decade ago,” she said.

She added that the Legislature sends “mixed messages” to Arkansas parents and children via the policies that pass and don’t pass, ranging from insurance coverage to abortion access.

“We’re inconsistent as state policymakers,” Hudson said. “We’ll pass bills that do good things for women and children in the community, and the same day we’ll pass legislation that harms them.”

More legislation

Several maternal health and abortion policies were introduced during Arkansas’ 2023 legislative session. Some made it to the governor’s desk, even though they took a backseat to other policy initiatives championed by the Republican-led Legislature and executive branch.

Bills that passed

  • Increased adoption awareness in schools.
  • A ban on schools providing or offering referrals for abortions.
  • Permission for local governments to pass resolutions stating they have a “pro-life policy.”
  • The addition of resources to the state’s Life Choices Lifeline, a program within the Arkansas Department of Health that promotes childbirth instead of abortion and provides social services to pregnant Arkansans and parents of children under 2 years old.
  • The elimination of language in Arkansas code stating that “continuing population growth” can perpetuate social and economic problems and that contraception is “not sufficiently available” to many Arkansans.
  • A law that will create a “monument to the unborn” on state Capitol grounds.

Bills that did not pass

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