Amid the cheers of a pro-life rally Friday, Rep. Walt Blackman, R-Snowflake, proclaimed a bill he introduced will treat women who get abortions and their doctors as murderers. 

But a law professor said the proposed law would not stand up in court if passed and the state’s leading pro-life lobbyist stopped short of endorsing HB2650. 

The bill defines abortion as homicide, and gives both counties and the state Attorney General’s Office the power to prosecute it and directs counties to enforce the law “regardless of any contrary or conflicting federal laws, regulations, treaties, court decisions or executive orders.” The hope of its supporters would be that the state would enforce it despite the U.S. Supreme Court’s 1973 Roe v. Wade decision, which bars states from banning abortion in the first two trimesters of pregnancy.

Cathi Herrod, president of the influential socially conservative group the Center for Arizona Policy, which has backed numerous bills restricting abortion over the years, sidestepped the question of whether the organization supports Blackman’s bill. 

“Center for Arizona Policy has always been fully committed to advocating for Arizona women and their preborn babies,” she said. “We strive for a day when abortion is unthinkable and not legal, because it takes a human life and it deeply harms the woman – both physically and emotionally.”

Herrod said the group’s focus “is on legislation that will provide further protections in Arizona law for the preborn and their mothers with a likelihood of being upheld by the courts. We all look forward to a day when abortion is unthinkable and illegal, and I applaud all efforts to that end.”

Paul Bender, a professor who teaches constitutional law at the Sandra Day O’Connor College of Law, said a state can’t exempt itself from the U.S. Constitution by just saying it doesn’t apply. 

“The short answer is, it’s unconstitutional,” Bender said. “But as long as Roe v. Wade remains the law, you cannot criminalize abortion.”

If it were to pass, Bender said it might stay on the books if the state doesn’t try to enforce it, although he also said it is likely someone such as a doctor theoretically subject to criminal charges would seek a declaratory judgment striking it down before anyone is arrested under it. If a woman or doctor were to be arrested, Bender said they would likely challenge it on constitutional grounds. He said he doubts it’ll get that far anyway.

“You can never tell what’ll happen with the Arizona Legislature, but it is so clearly unconstitutional they might decide not to vote for it,” he said.

Bender said the way Roe might be overturned in the future is if a state passes a law restricting abortion that can pass legal muster and makes it to the U.S. Supreme Court.

“(Passing laws like Blackman’s) does not strike me as a sensible thing for states to keep doing, because they waste their time spinning their wheels trying to keep passing unconstitutional statutes,” he said.

 Nine House Republicans are co-sponsoring it, including Majority Leader Ben Toma, R-Peoria; Majority Whip Leo Biasucci, R-Lake Havasu City; Transportation Committee Chairman Frank Carroll, R-Surprise; and Ways and Means Chairwoman Shawnna Bolick, R-Phoenix.

“We have leadership on this bill,” Blackman noted at Friday’s rally.

House GOP spokesman Andrew Wilder said Speaker Rusty Bowers, R-Mesa, hasn’t reviewed the bill yet as more than 230 House bills were introduced on Thursday, and he would have to read it before deciding whether to assign it to a committee.

Blackman said he could see the bill being assigned to the Judiciary or Health and Human Services committees. He acknowledged there would be “a lot of debate” surrounding the bill but said he has faith it will get through.

“If we look at the platform of the Republican Party, it is for fighting abortion,” he said. “If those (committee) chairs are truly for fighting abortion and abolishing it instead of regulating it, they will be for it.”

The rhetoric at Friday’s rally spoke to the divides within the anti-abortion movement. While most conservatives have opposed abortion for decades, more establishment-oriented Republican politicians and anti-abortion groups have traditionally sought to fight it by gradual measures such as appointing conservative judges and backing laws that test the limits of Roe. 

Recently, some right-wing politicians and churches here and in other states have been urging states to ignore federal court rulings allowing abortion and criminalize it as murder. 

A bill similar to Blackman’s was introduced in Idaho in 2019 and 2020, although it only drew a handful of co-sponsors and never got a hearing. Supporters of this view generally believe women who get abortions should be punished as well as the doctors who perform them, oppose rape and incest exemptions and often talk about “abolishing” abortion, sometimes drawing explicit comparisons between their movement and the fight to abolish slavery.

“We can’t kill human beings because they don’t look human to us,” the Rev. Jeff Durbin, pastor of Mesa’s Apologia Church, said at Friday’s rally. “They said that about Jews and they said that about black people. We can’t kill human beings because they’re a clump of cells. Welcome to a collection of a clump of cells today!”

Durbin called on the crowd to step away from “the failed pro-life industry” and start viewing abortion unequivocally as murder.

“If any lives matter, they need to be protected from the moment of conception,” he said. “All lives need to be protected in the womb.”

The bill does contain an exception allowing abortion in the case of a pregnancy “that seriously threatens the life of the mother when a reasonable alternative to save the life of both the mother and the unborn child is unavailable,” but it does not exempt pregnancies that are the result of rape or incest.

Rep. Athena Salman, D-Tucson, introduced a bill of her own Thursday, H2609, co-sponsored by 10 other House Democrats, that would repeal the unenforced pre-1973 abortion ban still on the books in Arizona.