Arizona’s pro-life movement is considering a proposal to outlaw abortion once a heartbeat is detected in a fetus, an idea that is designed to directly confront Roe v. Wade, the landmark court ruling that ensures a woman’s right to terminate a pregnancy.
Pro-life activists here said no decision has been reached whether to introduce the proposal during the 2012 legislative session, which begins next month. But they emphasized they are looking into a variety of anti-abortion possibilities, including the “heartbeat” measure.
Still, the idea of passing a state law to provoke litigation and persuade the U.S. Supreme Court to overturn Roe v. Wade is appealing to some conservative lawmakers.
Sen. Ron Gould, R-Lake Havasu City, who once urged fellow social conservatives to pass legislation to expressly outlaw abortion to “see whether we truly do have a pro-life Supreme Court,” said he’s open to sponsoring the measure.
“This is my last year in the Legislature and I’d like to see it done. I’d like to be able to vote for it,” Gould told the Arizona Capitol Times. “I think it’s a great idea. I think it’s about time.”
Given the Legislature’s ideological bent and the governor’s strong pro-life stance, the proposal would likely have easy passage at the Capitol, unlike in other states where the proposal is causing a schism.
Even pro-choice lawmakers like Sen. Linda Lopez, D-Tucson, admit it would be difficult to stop it from moving forward.
“The reality is if they introduced that bill, it will get passed and it will get signed into law,” Lopez said. “Now, is that what average Arizonans think should happen in terms of women’s reproductive rights? I don’t think so.”
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While the idea has thrilled some, pro-life groups are cautious about divulging their plans for next session.
“We look at every bill in every state and we consider it, and consider if it works here,” said Aaron Baer, a spokesman for the Center for Arizona Policy. “Does that mean it’s going to come up in this session? We don’t know yet. Nothing is set in stone on this.”
The Center for Arizona Policy and the Arizona Catholic Conference are two of the most influential — and prolific — pro-life interest groups in Arizona.
Their lobbyists have forged a strategic partnership with key legislators that produced major anti-abortion laws, including a 2009 measure that delays an abortion for a day and prohibits them — except in the case of an emergency — unless a physician has first, among other requirements, informed the mother about the “probable anatomical and physiological characteristics of the unborn child.”
Baer wouldn’t even say how his group views the “heartbeat” bill.
But part of that reluctance may be traced to their longstanding strategy of chipping away at Roe v. Wade through bills that incrementally limit abortion.
The heartbeat bill, which has been introduced in the Ohio Legislature, requires a physician to determine a fetus’ heartbeat prior to an abortion. If detected, the physician must inform the mother in writing about it and offer her the “statistical probability” of bringing the fetus to term.
Its crucial provision prohibits an abortion if the heartbeat is detected — except to prevent death or a major harm to the mother. Fetal heartbeat can be detected as early as six to eight weeks into pregnancy.
Waging a battle to pass the “heartbeat” bill would mean a major departure from a strategy that has given pro-life activists here a string of successes at the state Capitol and recently in the legal arena, where the 2009 “informed consent” law and another statute that prohibits non-physicians from performing an abortion have been upheld.
“We’re trying to be wise about what will be most effective and what can hold up (in court),” said Ron Johnson, the executive director of the Arizona Catholic Conference.
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Pro-life activists have reason to be cautious. The “heartbeat” bill has resulted in a schism in the pro-life movement in Ohio.
Some, like the Ohio Right to Life, refused to support the proposal out of worry that the country’s highest court isn’t ready to overturn Roe v. Wade. But it has also stirred the passion of others who feel that it’s time to take the bold step.
The New York Times, in a Dec. 4 article that explored that schism, said activists in 10 other states, including Arizona, are developing similar “heartbeat” bills.
A public split in the pro-life movement is unlikely in Arizona, but outlawing abortion outright — or any effort that comes close to it — could stoke divisions over tactics and how far to push.
Speaking about the movement in general, a source in the pro-life community here told the Arizona Capitol Times there has always been some splits about tactics, but he doesn’t think any specific approach to confronting abortion would result in a breakup as pro-life activists in Arizona have always presented a united front.
But the source provided some insight into the debates within his community. He said a proposal may, for example, look appealing.
“(But) if something gets struck down, then what good is that? You get nothing,” he said.
Still, some like John Jacubczyk, a past president of Arizona Right to Life and who helped draft the Ohio bill, don’t see the point of further waiting.
“This is where there are a number of lawyers who are concerned that the court won’t want to visit Roe and therefore this could be a setback,” he said. “I don’t know how much (more) we can be set back. We got legal abortion killing 4,000 babies a day. I don’t see the logic in that.”
The local chapter of the American Civil Liberties Union said the “heartbeat” bill, if introduced and signed into law in Arizona, will likely end up in court.
“A lot of times a fetal heartbeat can be detected so early in pregnancy that the effect of passing this kind of provision would basically outlaw pretty much all abortion,” said Anjali Abraham of the local ACLU. “We certainly oppose any kind of legislative provision that would do that, and it’s very likely that we would at least look into potential litigation.”
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But a legal setback is only one risk for the pro-life community.
There are others.
Gould believes that pro-choice activists would try and stop it through a ballot measure.
Gould noted that a similar thing happened in South Dakota in 2006, when the state passed a law to ban nearly all abortions.
Pro-choice advocates successfully gathered signatures to put the bill on the ballot, and residents rejected it.
Gould said he’d be willing to take that risk.
“At least, that puts it into the hands of the voters to decide,” he said.
Lopez, the pro-choice legislator, said a bill that goes “too far” might spark a citizen initiative not only to stop it from becoming effective if signed into law, but more broadly, to ensure that women’s reproductive rights are part of the Arizona Constitution.
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But even some pro-choice activists like Bryan Howard, CEO of Planned Parenthood Arizona, are skeptical that the heartbeat bill would be introduced in next year’s session.
Some of those on the other side are too politically savvy to leapfrog to the “most extreme” idea of fighting Roe v. Wade, he said, noting that the so-called personhood amendment, which defines a person to mean starting from conception, was defeated in Mississippi.
Howard said Americans here and elsewhere may be uncomfortable with abortion themselves, but they recognize that terminating a pregnancy is a deeply personal and complicated matter that needs to be left to a woman and those around her to discern.
“The Center for Arizona Policy, which seems to dictate most of this agenda in the state, is very calculating and they are very careful to stay on their message and to try and push their agenda forward incrementally in a very stealthy way,” Howard said.
Instead, Howard anticipates at least two bills dealing with the subject — the first is to prohibit abortion after
20 weeks and the second is to prohibit money administered by the state to flow into groups that provide for an abortion in addition to other health services they offer.
In short, Bryan expects to see the prolife movement here to try and go after Planned Parenthood, which gets Medicaid money for non-abortion services like cancer screening, birth control and testing and treatment of sexually transmitted diseases.
“This legislation that we are expecting to see would dictate for women and men where they can choose to get their health care,” he said.