The Arkansas State Medical Board will revisit proposed changes to a regulation governing abortion procedures after state legislators complained Tuesday about the board's decision to replace the terms "unborn human individual" and "unborn child" with the word "fetus."
The changes to the board's Regulation 36 would carry out laws passed by the Arkansas Legislature last year that placed additional restrictions on abortions.
An initial draft of the additions used the term "unborn child," the same term used in the legislation.
But at its Dec. 3 meeting, the board decided to use the word "fetus" throughout the regulation. That included replacing the term "unborn human individual" used in a part of the regulation, already in force, that implemented a 2013 law requiring doctors to test for a fetal heartbeat before performing an abortion.
At a meeting Tuesday of the Legislative Council's Administrative Rules and Regulations Subcommittee, medical board attorney Kevin O'Dwyer said the board wanted to eliminate ambiguity.
"'Unborn child' is not a medical term," O'Dwyer said.
Sen. Jason Rapert, R-Bigelow, who sponsored the 2013 law, said a medical dictionary defines a fetus as an unborn human offspring from the third month after fertilization until birth.
By using the term "fetus," Rapert told O'Dwyer, "you leave open 12 weeks in which somebody could argue that they didn't violate your rule."
The 2013 law that Rapert sponsored defines a fetus differently, however.
According to the law, known as the Arkansas Human Heartbeat Protection Act, "'fetus' means the human offspring developing during pregnancy from the moment of fertilization and includes the embryonic stage of development."
The law uses the word "fetus" in some instances and "unborn human individual" in others.
The regulation approved by the medical board in December 2014 to implement the 2013 law also uses both terms.
Rapert said the board's December 2014 vote came only after the members "almost got into somewhat of an argument about whether or not they actually had to pass a rule to enforce legislation that was passed by this body."
"Now they are beginning to try to legislate these issues by changing the wording and intent," he said.
Rep. Julie Mayberry, R-East End, said the proposed additions to the regulation, echoing language from one of the laws passed last year, define an unborn child as "the offspring of human beings from conception until birth."
"A lot of time is spent on coming up with the words that we want to move forward with," Mayberry said.
Mayberry was a sponsor of one of the laws, which outlawed so-called webcam abortions by requiring a physician to be present during chemical abortions.
Other laws passed last year increased the required waiting period between an initial consultation and abortion from 24 hours to 48 hours and adopted recommendations by the U.S. Food and Drug Administration on the use of the abortion drug mifepristone, also known as RU-486.
After the subcommittee meeting, O'Dwyer said the board's wording change wasn't motivated by board members' opinions on abortion.
One of the board's 14 members voted against the proposed regulation, according to minutes of the Dec. 3 meeting. The minutes don't say which member it was.
O'Dwyer said he would take the regulation back to the board and communicate the lawmakers' feedback. The board will likely take up the issue during its meeting in April, he said.
Metro on 01/13/2016