Over the decades, pro-life advocates have consistently worked to reach people at the local level. From sidewalk volunteers outside abortion facilities to county pro-life chapters, local communities often have been a critical arena for affirming the sanctity of human life. However, in recent years pro-lifers have engaged in a new kind of advocacy by encouraging city and county officials to adopt resolutions and ordinances affirming that their communities are pro-life. Legislation at the city or county level helps foster a culture that values life, and it may deter local pro-abortion efforts. In the past twelve months Arkansas has seen a rapid expansion in the number of cities and counties voting to declare that they are pro-life. Those local resolutions are the result of a law the General Assembly passed in 2021. That pro-life law—and the local pro-life measures adopted since its enactment—trace their history back to a relatively obscure U.S. Supreme Court decision from 1977: Poelker v. Doe.

 

The Poelker v. Doe Decision’s Impact on Local Pro-Life Measures

In August of 1973—just seven months after the U.S. Supreme Court’s decision in Roe v. Wade—a St. Louis woman known only as Jane Doe attempted to have an elective abortion at a hospital owned and operated by the City of St. Louis. However, physicians and medical students at the hospital told Doe that hospital policy did not permit abortions. Doe filed a lawsuit against St. Louis Mayor John H. Poelker and the city’s hospital commissioner. A federal court determined that following the Roe v. Wade decision, Mayor Poelker promulgated a policy that generally prevented abortion at the city hospital except in cases when the mother’s life was in jeopardy.[1]

 

After extensive wrangling in federal court, the 8th Circuit Court of Appeals ruled against St. Louis Mayor Poelker. The court’s decision described the city’s pro-life policy as “a wanton, callous disregard for the constitutional rights of indigent pregnant women continuing long after those rights had been clearly enunciated by the Supreme Court in Roe v. Wade, supra, and Doe v. Bolton, supra.”[2] However, city officials from St. Louis appealed the decision. On July 6, 1976, the U.S. Supreme Court agreed to hear the case of Poelker v. Doe.

 

Nearly a year later, on June 20, 1977, the U.S. Supreme Court issued a per curiam decision in the case. The court reversed the 8th Circuit’s ruling and effectively allowed the City of St. Louis to prohibit abortion at its hospital. The decision was noteworthy in part because all but one member of the court—Associate Justice John Paul Stevens—were on the U.S. Supreme Court in 1973 when Roe v. Wade was decided. Toward the end of the decision, the court opined that city policies like St. Louis’ are “subject to public debate and approval or disapproval at the polls” and that “the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done.”[3] Those words penned in 1977 have helped affirm pro-life efforts at the state and local level in the years since.

 

For example, in 1989 the U.S. Supreme Court cited Poelker when it upheld a Missouri law restricting state funds, facilities, and employees in performing abortions or abortion counseling.[4] In 1998 a three-judge panel from the 7th Circuit Court of Appeals referenced Poelker when it speculated that a county hospital could require notification of the unborn baby’s father before an abortion.[5] When Ellis County, Texas, became a sanctuary for the unborn on January 28, 2020, the commissioner’s court made a point to cite the Poelker decision in its resolution.[6] And in June of 2021 the Iowa Supreme Court quoted directly from Poelker when it upheld state laws that prohibited abortion providers from participating in educational programs aimed at reducing teen pregnancy.[7] Nearly 45 years later, the Poelker v. Doe decision is shaping pro-life public policy across the nation.

 

Arkansas Act 392 of 2021 Affirming that Communities Can Declare Themselves Pro-Life

On March 17, 2021, Arkansas Governor Asa Hutchinson signed Act 392 into law. Act 392 affirms that cities and counties in Arkansas can designate themselves as Pro-Life. Under Act 392, communities in Arkansas can pass resolutions stating that it is their policy “to promote and protect the dignity and humanity of all persons at all stages of life from conception until natural death.” Act 392 cites the 1977 Poelker decision, and it observes that the constitution does not prohibit a municipality from using democratic processes to express a preference for childbirth as opposed to abortion. The law also outlines some of the ways that communities can advertise their pro-life status.

 

For example, Act 392 says that communities in Arkansas have the freedom to post signs, banners, or slogans advertising that they are pro-life near public rights-of-way or on other public property. The law also affirms that pro-life communities can produce and distribute pro-life signs, decals, or other material that residents and businesses may voluntarily display. Under Act 392, pro-life communities can hold pro-life observances—such as a pro-life day or pro-life month. That means city or county officials could observe January 22—the anniversary of Roe v. Wade—as a pro-life day of remembrance. The law also clarifies that communities have the freedom to construct permanent monuments or memorials to the lives lost to abortion and may even establish cemeteries “for the dignified burial of the unborn and for memorials to those who have died in an abortion.”

 

Following the passage of Act 392, communities across Arkansas began passing resolutions affirming that they are pro-life. As of May 1, 2022, at least 20 counties and 13 cities and towns have adopted pro-life resolutions. In some communities, governing bodies have enacted these resolutions unanimously.[8],[9],[10] Family Council, a pro-life organization based in Little Rock, estimates that more than 1.3 million Arkansans—a little over 43% of the state’s population—currently reside in a Pro-Life County.[11]

 

Conclusion

The U.S. Supreme Court’s Poelker v. Doe decision—as well as other federal case law—makes it clear that cities and counties in the United States are free to adopt anti-abortion measures. It is not necessary for a state to pass legislation like Arkansas’ Act 392 of 2021 before communities enact their own pro-life policies. However, state legislation may encourage local elected officials to address the issue of abortion. It also may help alleviate concerns that a local pro-life ordinance could be blocked in a state court. It certainly seems to have been effective at fueling local pro-life activity in Arkansas.

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[1] Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975).

[2] Id.

[3] Poelker v. Doe, 432 U.S. 519, 521, 97 S. Ct. 2391, 2392 (1977).

[4] Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040 (1989).

[5] Coe v. County of Cook, 162 F.3d 491 (7th Cir. 1998).

[6] “Resolution of the Ellis County Commissioners Court, Declaring The County of Ellis, Texas to be a Sanctuary for the Unborn.” Ellis County, Texas, Official Website, January 28, 2020. https://www.co.ellis.tx.us/ArchiveCenter/ViewFile/Item/3262.

[7] Planned Parenthood of the Heartland, Inc. v. Reynolds, No. 20-0804, State Supreme Court of Iowa (2021).

[8] “Fulton County Quorum Court Unanimously Passes Pro-Life Resolution.” Family Council Website, April 19, 2022. https://familycouncil.org/?p=24199.

[9] “Western Grove Unanimously Passes Pro-Life Resolution.” Family Council Website, March 10, 2022. https://familycouncil.org/?p=23994.

[10] “Boone County Quorum Court Unanimously Approves Pro-Life Resolution.” Family Council Website, March 9, 2022. https://familycouncil.org/?p=23988.

[11] “Forty-Three Percent of Arkansans Live in a Pro-Life County.” Family Council Website, May 3, 2022. https://familycouncil.org/?p=24262.

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David Cox

Assistant Director

Family Council, Arkansas

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