Post-Roe Arizona abound in possibilities

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Arizona is facing the possibility of a total ban on abortions this year if states get back the power to enforce their own abortion regulations. 

A leaked decision from the US Supreme Court shows that the conservative justices are preparing to overturn Roe v Wade, potentially reverting Arizona to a pre-Roe anti-abortion policy.  

In Arizona, there are two conflicting laws that could go into effect: a total ban on abortions via a 1912 territorial-era law predating Roe v Wade, and a new law that was just signed in March banning abortions after 15 weeks. 

“Yes, the pre-Roe ban on the books in Arizona would likely still be considered valid law,” Senate Rules Attorney Chris Kleminich said in a text. “It will be up to the courts to decide.” Kleminich expects the territorial law to take precedence because the new law does not go into effect until 90 days after the Legislative session ends. “At minimum there will be that interim period where the existing law is the only one on the books.”  

The Supreme Court will likely make their official decision overturning Roe v Wade in June, meaning between then and three months after the Legislature adjourns, only the territorial-era ban law will be on the books. There are still conflicting ideas about how this will play out. Gov. Doug Ducey said in an interview with Capitol Media Services last week that he does not believe the old law will go into effect. However, others including conservative Center for Arizona Policy President Cathi Herrod believe that Arizona will be able to enforce the older ban. Herrod was the architect behind many anti-abortion laws over the past several years in Arizona and pushed Sen. Nancy Barto, R-Phoenix’s 15-week bill this year. 

Herrod said on Monday that Roe v Wade should make the pre-Roe v Wade law enforceable again. “The 15-week limit and the other laws that regulate abortion would not be really enforced,” she predicted. 

The 15-week ban Arizona passed this year classifies administering an abortion as a class 6 felony and an act of unprofessional conduct that could result in the suspension or revocation of the physician’s license. If a physician does perform an abortion after 15 weeks, they must file a report to the Department of Health Services or be penalized with a fine. An abortion can still be performed after 15 weeks in the case of a medical emergency. 

The territorial-era law bans abortion in all instances, under penalty of 2 to 5 years in prison for the abortion provider. The original law also punished the woman seeking an abortion with 1 to 5 years in prison, but this part of it was repealed as part of last year’s Senate Bill 1457. Paul Bender, a constitutional law professor at Arizona State University, said he isn’t sure whether the old law will immediately become enforceable or not if Roe is overturned. 

“I don’t think anybody knows the answer to that for sure,” Bender said Tuesday. “It may very well. … The safe thing for the Legislature to do, if it still believes that, would be to, after the Supreme Court opinion gets handed down and I think 10 days after they announce it, the Legislature just pass whatever statute they want now.” 

Bender said there are questions “because that’s such a rare thing to happen, to have a law passed that long ago, when so much has changed since then” come back onto the books and be enforceable. 

“I’m not sure what the precedents are,” he said. “My sense is, there’s no clear rule about whether this law will spring back into effect.” 

However, another consideration – and one that, Bender thinks, might make abortion foes hope the old law is still enforceable – is that a new law would be subject to the referendum petition process after the end of the legislative session, while the existing territorial-era law would not be. Bender thinks there is a decent chance that abortion rights supporters would be able to get enough signatures to force a public vote on a new abortion law in November 2022. 

“Because that would be so contentious and disruptive, I think there would be a feeling of some people (that) they would just like the old law to go into effect,” Bender said. 

Sen. Tyler Pace, R-Mesa, supported the 15-week abortion ban, but said that he would not have voted in favor of a proposed 6-week “heartbeat” ban. Pace declined to comment on whether he opposes a total ban, but he said he would “do something” if the law is interpreted to include contraceptives.  

“It would have to depend on how it actually turns out and what the lawyer thinks it looks like,” Pace said. If enough conservatives in the Legislature share this view, it is possible that an effort to overturn the territorial law will go forward next session, but it will be up to new House and Senate leadership to get those bills through. Current House and Senate leaders are leaving the Legislature this year. 

Even if Roe is overturned, abortion will still generally be legal in Democratic-run states, which will likely lead many women seeking an abortion to travel to states such as California and New Mexico. Although a few red states have been discussing laws to criminalize traveling to get an abortion, Bender said he doesn’t think this will stand up in court. 

“That wouldn’t surprise me if they try to do that,” Bender said. “I don’t think that would be constitutional, but who knows what the Arizona Legislature would experiment with.” 

Recent polling shows a majority of Arizonans think abortion should be legal. A 2021 poll by the non-partisan survey group OH Predictive Insights determined that around 62% of Arizonans are “pro-choice” and only 38% identify as “pro-life.” The poll found 51% of Arizonans opposed the “heartbeat” bill Texas passed last year, while 39% supported it and 10% were unsure. 

With the Supreme Court likely to overturn Roe, much of the focus of abortion rights supporters will likely turn to pressuring Congress to pass protections for abortion federally. And Arizona’s senior senator will be at the center of this debate. 

U.S. Sen. Kyrsten Sinema has consistently supported abortion, but she has also consistently opposed modifying or getting rid of the filibuster, a prerequisite to pass federal legislation on the topic given that there is no chance 60 senators will support it. She issued  a statement Tuesday supporting Roe while also noting that “protections in the Senate” have been used a half-dozen times in the last 10 years to block anti-abortion legislation. 

“Throughout my time in Congress, I’ve always supported women’s access to health care, I’m a cosponsor of the Women’s Health Protection Act, and I’ll continue working with anyone to protect women’s ability to make decisions about their futures,” she said. 

Sinema’s response didn’t cut any ice with more progressive Democrats. Rep. Athena Salman, D-Tempe, said Sinema “cares more about protecting the filibuster than protecting reproductive rights.” U.S. Rep. Alexandria Ocasio-Cortez, D-NY, called for Sinema to be primaried.