FAQ: Where abortion stands in Arizona after the Supreme Court overturns Roe v. Wade
The U.S. Supreme Court overturned Roe V. Wade on June 24, setting the stage for some states to enact restrictions on access to abortion. Here's what is important to know about abortion in Arizona right now based on interviews with health and policy experts. (This FAQ will be updated as new information becomes available.)
What is the law in Arizona following the June 24 decision?
Arizona has two competing laws: a 15 week ban on abortions that Gov. Doug Ducey signed earlier this year, and a territorial law, which bans all abortion except to save the life of the mother.
Law professor Barbara Atwood from the James E. Rogers College of Law at the University of Arizona told The Show on Friday she thinks interpreting the law going forward is going to be "chaos."
"Arizona has on the books and has had on the books since territorial days, a criminal prohibition on abortion," said Atwood. "Starting from conception, basically, it's not at all tied to stages of pregnancy, and it imposes a criminal penalty of two to five years for anyone who assists a woman in aborting, a pregnancy except where necessary to save her life. That's the only exception in Arizona's law that has been unenforceable, of course, since 1973."
"There are voices in Arizona that say that that law will spring back into being. I'm sure some of those advocates are making that assertion right now today," said Atwood. "On the other hand, the Arizona Legislature this year passed a 15-week law that essentially parallels the Mississippi law. and it was signed by Gov. Ducey."
When he signed that it, Atwood said Ducey said he think this law will supersede the older law. That will take effect in September. While Ducey contends the new law takes precedent, Republican Sen. Nancy Barto, who wrote the legislation, says it does not repeal any other state law regulating or restricting abortion.
Arizona’s Supreme Court may have to decide which law is enforceable in the state.
Hear more with Barbara Atwood on The Show with Mark Brodie
Arizona's Republican attorney general announced June 29 that a pre-statehood law that bans all abortions is enforceable and that he will soon file for the removal of an injunction that has blocked it for nearly 50 years.
Attorney General Mark Brnovich's office said after the U.S. Supreme Court overturned its 1973 decision that said abortion was a constitutional right that he was weighing whether the old law could be be enforced.
His decision puts him at odds with Republican Gov. Doug Ducey. The governor had said after he signed a new law banning abortions after 15 weeks in March that it took precedence over the law in place since at least 1901, 11 years before Arizona statehood.
Chris Griffin, a University of Arizona law professor, described the possibility of both laws becoming active.
“If the injunction were to be lifted and the 15-week ban were to be effective, according to its own terms, then I think we would have a question of interpretation for the courts," said Griffin.
What will be the impact on public health?
In Arizona, roughly 13,000 abortions are performed each year. But according to Will Humble, the executive director for the Arizona Public Health Association, most are performed before 15 weeks.
"If the courts hold, the Arizona courts, hold that the 15 week law is what dominates, then I don't see the decision today having huge public health consequences. On the other hand, if this Arizona Supreme Court ends up deciding that the territorial-era law dominates, then I could see, for sure, bad public-health consequences," said Humble.
What does this mean for abortion providers?
On Friday, the head of Planned Parenthood Arizona said it is pausing all abortion care, including both surgical and medication abortions because of the state’s conflicting laws.
Brittany Fonteno, president and CEO of Planned Parenthood Arizona, said Arizona is one of the most hostile when it comes to abortion, and that conflicting laws are intentionaly causing chaos and confusion.
"Out of an abundance of caution we are, you know being forced by the Supreme Court right now to pause abortion services until the state can come to a conclusion on how they want to proceed with abortion rights and access in Arizona," said Fonteno.
When asked about claims made by some Arizona Republicans that a 1901 territorial law banning abortion is now in effect, Fonteno says it does not.
"What we know to be certain is that there is an injunction from 1973. On the pre-Roe bans, it does not just automatically go into effect," said Fonteno.
Staff at Planned Parenthood Arizona knew this day was coming.
"We had a full slate of patients who were scheduled for … essential services that they needed, and were relying on," said Dr. Jill Gibson, the organization’s medical director.
Then came the Supreme Court ruling on Friday.
"We began making phone calls to patients to let them know that we were being forced to cancel their appointments. Some patients, of course, didn't get the phone call," said Gibson.
Jenna Panas, CEO of the Arizona Coalition to End Sexual and Domestic Violence, said Friday morning the providers the coalition works with will continue providing care for patients.
"From the providers that we work with, they are going to continue to provide care. They understand that abortion care is critical to the health of women and people who can become pregnant and do not plan on on shutting down services until the legalities are determined and we have a better path forward," Panas said.
Could there be legal challenges to Arizona's laws?
Atwood thinks there will be legal challenges by people on all sides.
"I think everywhere in the United States, people are having this exact conversation. Like, 'What now?" Atwood said.
If a person is charged until the old territorial law, Atwood say, the constitutionality could be challenged.
"For example, say there is a jurisdiction in the state of Arizona attempts to enforce the criminal prohibition on abortion, this old, old law. A person who is charged with a crime under that law could raise its constitutionality in Arizona or its applicability, arguing that Arizona still permits abortions for 15 weeks."
Could abortion access ever become state law?
Activists hope to get a measure on the ballot this year to make abortion access part of state law.
The initiative would amend Arizona’s constitution to codify the right to reproductive freedom and make it illegal for the state to restrict or interfere with that right.
"It would take precedence and it would nullify any of the other existing bans and again, this would be completely in the hands of the voters. So we get to decide if this is what we want to do," said Amy Fitch-Heacock with Arizonans for Reproductive Freedom.
Fitch-Heacock says the new measure would also extend the right to choose contraceptives and postpartum care. It needs more than 356,000 signatures by July 7 to get on the ballot.
What about when abortion is life-saving?
For states like Arizona, banning or limiting abortion could be deadly for women.
Dr. Laura Mercer is an OB/GYN and Chair of the Arizona Section of the American College of Obstetricians and Gynecologists. She says abortions can be life saving.
"One example is if the bag of water were to break in the second trimester really early, long before viability, we know that the longer the bag of water is broken, the more of a chance of infection getting inside the uterus and causing major life-threatening complications for the patient," said Mercer.
In terms of who will decide when an abortion is necessary or what “life of the mother” actually means, Mercer says the language is unclear and could leave a physician waiting until its too late.
Could someone travel out of state to get an abortion?
Paul Bender, a constitutional law professor at the Sandra Day O'Connor College of Law at Arizona State University, said he thinks the Arizona Legislature will likely try to stop people from going to different states for an abortion.
"I would guess that the Arizona Legislature is likely to try to do something to deter people from going to California or New York or other states, where abortion is legal, to get an abortion and then come back here, after the abortion is done. That would raise interesting and difficult constitutional problems," said Bender.
Will this ruling affect the midterm election?
The reversal of Roe v. Wade will be top of mind for midterm voters, according to one Arizona political analyst.
Jim Heath says the decision may shift voter’s focus away from other issues, such as the economy, and will energize the Democratic vote.
“Frankly, I never thought I’d see it in my lifetime," Heath said. "Basically, the Republican Supreme Court has taken away a woman’s right to choose, abortion is now illegal in 15 states and growing. I think that this is going to be a rallying cry for the left.”
As for Arizona’s gubernatorial race, Heath says while abortion could sway voters one way or the other.
"I think that abortion might not be front and center as a gubernatorial issue, but I think the issue itself will probably help the Democratic nominee more than it's going to benefit the Republican nominee," Heath said.
Heath believes Arizona will be a battleground state come November.
Associated Press contributed to this report.
The status of abortion access by state