Key Points:

• Proposition 139 establishes fundamental right to abortion, challenges current laws

• New lawsuit targets waiting period, telemedicine ban, required ultrasounds

• Plaintiffs argue restrictions violate rights of Arizonans 

Several groups and individuals are going to court to strike down several abortion restrictions, asking a judge to rule that certain laws are now unconstitutional after Arizona voters approved Proposition 139.

The lawsuit filed May 22 in Maricopa County Superior Court asks Judge Randall Warner to declare a 24-hour waiting period before a woman can terminate a pregnancy unenforceable.

Challengers, including the Center for Reproductive Rights and the American Civil Liberties Union, also want a judge to overturn a separate prohibition on the use of telemedicine in abortion cases on behalf of two doctors and their staff who provide abortion care. That law includes a ban on the mailing of abortion pills to patients.

Finally, they want to void a law that says doctors cannot perform an abortion if they have reason to believe the patient is seeking it due to a fetal genetic defect.

The 58-page lawsuit includes a litany of reasons why the challengers believe the restrictions are not necessary to protect the health of women.

But the real teeth in the litigation is the new constitutional provision approved in November declaring that every individual has “a fundamental right to abortion.” And that voter-approved language specifically says that the state cannot deny, restrict or interfere with that right prior to fetal viability — generally considered between 22 and 24 weeks — absent a “compelling state interest that is achieved by the least restrictive means.”

What’s in each of the challenged restrictions, the attorney argues, is now beyond the power of the state to enact and enforce.

Less clear is who — if anyone — will defend the laws.

The lawsuit names the state as a defendant. And that usually would require Attorney General Kris Mayes to go to court to argue that the statutes, having been enacted by the Legislature, are entitled to the presumption of being valid.

Even before Prop. 139 was adopted, however, Mayes questioned the legality of multiple abortion restrictions. And she specifically refused to defend the state’s 15-week abortion ban when it was challenged after the initiative was approved.

Mayes press aide Richie Taylor said on May 22 that the new complaint is being reviewed. But he said his boss is “mindful … that Arizona law needs to align with the constitutional provisions that voters enacted last year.”

There was no immediate response from either House Speaker Steve Montenegro or Senate President Warren Petersen, both of whom opposed Prop. 139, whether they would defend the challenged statutes.

The waiting period is the broadest law at issue. 

That law says women wanting an abortion must first go to an abortion provider at least 24 hours ahead of time to undergo a mandatory ultrasound “regardless of medical necessity or the person’s individual circumstances” as well as blood tests.

Doctors in that first visit also are supposed to provide certain what the challengers call “stigmatizing and irrelevant information” to the patient, like the probable anatomical and physiological characteristics of the fetus, the fact that medical assistance benefits may be available for prenatal, childbirth and neonatal care, and that the father of the unborn child is financially liable for support, even if he has offered to pay for the abortion.

And then there’s the delay.

“In effect, these requirements force patients seeking abortion care to make multiple trips to their health care provider to obtain an abortion, regardless of that patient’s distance from the provider, reasons for seeking an abortion, medical circumstances, how certain they are, or how advanced their pregnancy is,” the lawsuit states. That means taking time from work or school, doubling the time and expense of transportation and even potentially the need for a hotel and arrangements for child care.

The ban on telemedicine for abortion care presents related issues about delay.

It starts with the requirement for an in-person visit to a doctor 24 hours ahead of any medical procedure and then the abortion being performed in person. But the key is the mandate that abortions be performed by a doctor – and in person.

The lawsuit says that’s unnecessary.

“Arizona has long used telemedicine to expand health care,” the lawsuit says, complete with a network established three decades ago designed to allow doctors to diagnose, consult and treat patients from remote locations. But abortion is not among the practices where telemedicine is permitted.

Challengers said the record in other states makes it clear that doctors can safely prescribe abortion pills to women whom they have only met electronically. They argue there is no reason for the restriction.

In case of an in-person medication abortion, the patient typically takes the first pill at the clinic and then goes home or elsewhere to take the second pill, with a follow-up visit within two weeks.

In a telemedicine setting, the doctor consults with the patient electronically, reviews the patient’s eligibility for care, and then prescribes the necessary medications. The patient would then have the prescription sent from a mail-order pharmacy, take the first pill where convenient with the second one within 48 hours.

The patient also gets a toll-free number to call with questions and schedule a follow-up telemedicine appointment.

“According to American College of Obstetricians and Gynecologists’ clinical standards for medication abortion, clinicians can safely and effectively provide medication abortion to eligible patients without an ultrasound examination or in-person testing,” challengers said.

Also challenged is a 2021 law that makes it a felony, with a one-year prison term, for a health care provider to terminate a pregnancy if a woman is seeking the procedure solely because of a fetal genetic defect. It includes everything from requiring doctors to sign an affidavit saying they have “no knowledge” that the pregnancy is being terminated because of the defect along with filing reports with the state health department.

Backers said they were trying to prevent aborting children with things like Down syndrome, suggesting that they need to step in to prevent eugenics. But the attorneys say it cannot survive constitutional scrutiny.

“To avoid the severe criminal, professional and civil penalties under the “reason ban scheme,” plaintiff physicians have no choice but to turn away a patient who reveals that they are or may be seeking abortion care wholly or in part for a prohibited reason,” the lawsuit said. What it also does, according to challengers, is chill the willingness of patients to share information with their abortion providers “out of fear that such information could prevent them from getting care.”

The bottom line to all this, according to the attorneys, is that all the challenged restrictions run afoul of Prop. 139 and its “fundamental right to abortion.”

The lawyers acknowledge that the initiative that has been adopted allows state regulation, but only under limited circumstances.

First, it has to be enacted for the limited purpose of improving or maintaining the health of the person seeking abortion care. Second, it must “not infringe on that individual’s autonomous decision making.”

“The challenged law cannot satisfy both prongs,” the lawyers are telling the court. They also say the laws at issue deprive patients” of their fundamental right to abortion under the Arizona Constitution, causing them to suffer significant constitutional physical, psychological, and other harms.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, said the lawsuit to strike down the statutes is simply carrying out the will of the voters when they approved Prop. 139 on a 3-2 margin.

“The public and the Constitution are aligned,” she said in a prepared statement. “Now it’s time for the laws to catch up.”

And Dr. William Richardson, one of the plaintiffs, specifically criticized the ban on telemedicine, saying it puts “ideology over science and politics over patient health.”

“These restrictions are an insult to patients and only push care out of reach, especially for those in rural, low-income, and marginalized communities,” said Richardson, who owns Choices Women’s Center in Phoenix.