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Abortion bill amended to strike controversial provision
A House committee struck a controversial provision from a bill that expands the amount of information abortion providers must report to the state. Rep. Eddie Farnsworth...
Issue: abortion
Abortion bill requires more reporting from doctors, hospitals, clinics
Doctors who provide abortions would have to ask a woman why she wants the procedure under a legislative proposal to boost reporting requirements. Hospitals, abortion clinics and the Arizona Department...
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Abortion debate brings out lawmakers’ personal experiences, emotions
In a usually contentious forum, lawmakers on Wednesday wept, offered comfort, and spoke about their struggles with ambivalence on abortion as they discussed a proposed law that would require medical professionals to try and save any “infant born alive.”
And from the debate on the bill two lawmakers, both nurses, found a moment of understanding despite ideological differences.
Sen. Janae Shamp, R-Surprise, is the sponsor of Senate Bill 1600, and she argued on behalf of her bill against Sen. Eva Burch, D-Mesa.
While they disagree strongly on abortion issues, Burch and Shamp share common ground. After an emotional discussion brought lawmakers to tears, they came together for an embrace after the bill passed the Senate third reading 16-13 on party lines.
Burch is open about the fact that she’s had miscarriages before, including one since taking office in January. She made the difficult decision to have one pregnancy terminated, although she wanted the baby to be born, after a doctor explained that the pregnancy would end in a miscarriage.
“If I had a baby that was 18 weeks, 19 weeks, 20 weeks, that I delivered in a hospital, and that baby was born alive, a medical team springing into action to do medical intervention instead of me being allowed to hold my baby when it died, and instead of allowing for comfort care and for all of the other options that are available and appropriate. That’s my concern,” Burch said.
The bill requires any “infant who is born alive” – including one that survives an abortion – to get “medically appropriate and reasonable care” from health professionals. A health care professional who violates the bill “intentionally or knowingly” is guilty of a felony and could have their license revoked.
The bill also says that no treatment is required if it would only “prolong the act of dying when death is imminent.”
With that language, Shamp said she believes that doctors wouldn’t be rushing to save non-viable fetuses. Abortions over 15 weeks’ gestation are already illegal in Arizona.
“As a nurse, I will always stand to protect those who cannot protect themselves,” Shamp, registered nurse, said.
Sen. John Kavanagh, R-Fountain Hills said he believes the bill would only apply to abortions, but Burch and other Democrats disagreed.
Although the bill mentions abortion, it’s not specific to that. Burch, an ER nurse, said that miscarriages are common and that the bill would “really only apply” to patients miscarrying. She reminded the chamber that the American College of Obstetricians and Gynecologists opposes the bill.
Premature babies born under 23 weeks’ gestation are not generally considered viable. Burch called it “inhumane” to provide medical care in those cases.
“Requiring the medical professional to provide lifesaving and sometimes painful interventions when a life cannot be fixed, it’s not medical, its torture, and its experimentation and my concern is that when a mother losing a pregnancy that this is a very difficult time for a woman,” she said.
Sen. Catherine Miranda, D-Phoenix, known as a rare pro-life Democrat, voted against Shamp’s bill.
Miranda served four years in the House and four years in the Senate with that identifier – but she took the last four years off from the Legislature.
“I got to reflect and revisit some things. … I realized through that reflection the hypocrisy that I was involved in,” Miranda said on the Senate floor. “What are we doing with that child after it’s born? I didn’t do much. The Senator [Burch] spoke in the Committee of the Whole of her experience, and that’s a real experience, and do you think that if there were tools to save that baby do you think that she wouldn’t have insisted? She’s a mother, we all would have.”
Sen. Ken Bennett, R-Prescott, said he had concerns with the bill although he is pro-life.
He ultimately voted ‘yes,’ but said the language might not yet strike the “correct balance.”
Bennet also spoke from personal experience.
Bennett’s daughter has worked as a labor and delivery nurse for 15 years.
“Somehow she has in both places where she’s worked kind of become the nurse that deals with infant demises, and the stories I hear about break my heart,” Bennett said.
He recalled stories of his daughter taking locks of hair or using a Q-tip to push the hand of a dead fetus into plaster of Paris to make a mold for the grieving family.
“I know my child would never make a decision in a room with parents … that she didn’t feel was in the best interest of the child and of the family,” he said.
The conservative Center for Arizona Policy is backing Shamp’s bill and issued a statement after its passage in the Senate, saying the votes tell “everything you need to know about which lawmakers refuse to draw the line before infanticide.”
Shamp doesn’t depict the issue as one with any gray area either.
“This isn’t about emotion. This isn’t about reproductive health. This is about life. Spiritual and comfort care is medically appropriate and reasonable care. Every baby that is born alive deserves a chance to live,” she told the chamber, siting the story of a couple whose child was born alive, but died about a week later. The couple believes the child was “slow coded” by doctors who didn’t expect her to live and didn’t do everything possible to save her.
The bill still must pass the House before it lands on the desk of Gov. Katie Hobbs, an ardent pro-choice advocate who is expected to veto it.
Burch said there’s still value in holding these floor discussions.
“Maybe we could at least understand each other, even if we can’t agree a little bit, Burch said. “And I think that’s definitely the right direction, and I know there are plenty on my side of the issue who would say that those conversations are futile, and that we have to call those things out for exactly what they are and all that, but maybe it’s because I’m new, I’m still hopeful.”
As for Shamp, Burch said as a fellow nurse she agrees with her colleague on as many things as she disagrees with her on.
Shamp is Trump-endorsed, religious, and conservative. Burch is endorsed by Planned Parenthood, non-religious and liberal.
She says she gets along with Shamp at the Legislature.
“Hopefully, we can all try to listen to each other,” Burch said.
Abortion is on the ballot in Arizona and nationwide
Last week, Vice President Kamala Harris visited Phoenix on the fifth stop of her “Fight for Reproductive Freedoms” tour, part of the Biden-Harris campaign’s unprecedented effort to center abortion rights...
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Abortion laws ignore reality of most lives
Abortion legal under Puritans, more than 200 years – what changed?
My sister and I went on an Amtrak vacation in July to attend a conference and visit friends and family in the Midwest. On her last leg home, my sister was on a local metro when a pregnant woman threw herself in front of the train and committed suicide. We don’t know if the lack of abortion or health care or services drove her to it. But expect to see more.
Prior to the 1840’s, abortion was widespread and not illegal. Under the Puritans, abortion was allowed until the fetus was “quick” or until the woman could feel it move even up to the fourth or fifth month as it was the woman’s choice. For more than two centuries after the Pilgrims landed abortion was largely permitted.
From the 1840s to 1900, abortion became illegal state by state and remained illegal everywhere in the United States until 1973 when Roe v. Wade said women had a constitutional right to determine the use of their own bodies. What caused the reversal?
In the 1830s, most women had their babies at home with midwives. Beginning in the 1840s, doctors and hospitals started to gain control of birthing. Soon doctors, nearly all men who never had a baby, became the decision makers for women’s reproductive health care and women lost their bodily autonomy.
The use of the term “right to life” didn’t start until 1951 from a papal encyclical in which Pope Pius XII said the child has a right to life from God not from its parents. Only 21% of Americans are Catholic. To make policy based on the beliefs of 21% of the people or based on religious dogma of any kind violates the First Amendment of the Constitution.
The “pro-life” term came into being only after 1973 when the first “anti-abortion” messaging failed. Of course it would since Americans still today support abortion from 51% of Catholics to 76% of mainstream religious people; from 59% of Republicans to 79% of Democrats. Pro-life is a good marketing tool, but a false message.
Likewise, the “heartbeat” bills like the “late term abortion” bills are cleverly but deceptively named. There is no such thing as “late term abortion” and that “heartbeat” is not – it is an electrical sensation in the nerves of the zygote. The heart is not yet developed let alone beating.
To punish a woman by forcing her to have a child she does not want or can’t afford is to make a child a punishment. A child should never be a “punishment.” The obvious answer to those opposed to abortion is don’t have one. No one is taking away their choice, their agency, their decision making, their family security, their income, their right to follow their own religion or beliefs.
Rev. Kelli Clement, the Social Justice minister at the First Unitarian Society in Minneapolis, wrote a column about how the right to an abortion transformed her life. In her 20s as an active alcoholic she had an abortion. Later when she became sober, she became the woman she wanted to be, a minister and a mother.
According to the Guttmacher Institute, 73% of women delay or end childbearing because they can’t afford it or it would interfere with their work, education, or ability to care for existing dependents. Forty-eight percent were in a bad relationship and didn’t want to become single parents. Sixty percent already had children and did not want to harm the existing family.
Legislators cannot make decisions about what is best for them. That must be left to the family that the anti-choice people claim they respect. If they really cared about families, they would look at why families can’t afford a child e.g. raise the minimum wage, ensure that women are paid equally to men, and provide adequate and affordable health care. They would also look at how educational institutions and work places can become more family friendly with paid parental leave, onsite childcare, safe and clean rooms for breast feeding and diaper-changing. They would also examine why it’s so difficult and expensive to care for the dependents we have such as providing all-day kindergarten, after school programs, community centers, and respite care for elderly parents. To end unstable relationships they would work to reduce violence against women and children. But they don’t do any of that. Instead women are blamed and shamed, they are paid less at work or forced out if they become pregnant or have child-care responsibilities, they are chastised for feeding a baby in a public place, they are expected to manage a work shift during the day and another when they get home. A fetus cannot be “sacred” before birth when it is clearly not “sacred” after it is born.
In 2013 the number of abortions in the U.S. dropped under one million for the first time since 1975 because of birth control. If reducing abortions was the goal, affordable, accessible birth control would be widely available and every school would have comprehensive sex education.
In states where they have a state Equal Rights Amendment (ERA), the abortion rate and the domestic violence rate is lower. If a person opposed abortion and supported families, that person would support birth control, comprehensive sex education and the ERA. But they don’t. That’s because the movement is not about pro-life; it’s about pro-control. If it was pro-life, they would support pre and post-natal care, health care, childcare, early education, free school lunch, SNAP, gun control, and abolish the death penalty. Those opposing women’s bodily autonomy will continue. But at least the public should know what that fight is truly about.
Dianne Post is an international human rights attorney with 37 years of experience, and serves on the board of State NOW and ERA Task Force Arizona.
Abortion outlawed, political conflict continues
A pre-statehood ban on nearly all abortions will stand, the Arizona Supreme Court ruled today.
In a 4-2 decision, justices found the removal of the federal right to abortion on the demise of Roe v Wade renders the 15-week ban passed by the legislature in 2022 devoid of any implied right to abortion and any authority to override the earlier all-out ban on the practice.
The ruling effectively deems all abortions, except to save the life of the mother, illegal.
State government and political party leaders remarked on how the decision fundamentally shifts the political landscape ahead of the 2024 election and stands to sustain further legal and legislative fights over abortion law.
In the hours following the ruling, pro-abortion groups and Democrats called for voters to flip the Legislature and pass a ballot measure enshrining a right to abortion in the Arizona constitution.
And though some celebrated the ruling, a large swath of state and federal Republican lawmakers, candidates, and former Gov. Doug Ducey, who signed the 15-week legislation into law, walked back their support for the all-out ban, with some going so far as to call for its repeal.
Litigation over abortion law remains far from over, too.
The justices left a small window for Planned Parenthood to pursue additional constitutional challenges to the 1864 abortion ban and issued a 14-day pause on enforcement, which joins with a 45-day stay ordered in a separate lawsuit.
Planned Parenthood Arizona said the organization was still considering its next steps.
“We have not fully had a chance to digest the tragedy that is this opinion,” Andy Gaona, attorney for Planned Parenthood Arizona, said.
Attorney General Kris Mayes vowed not to prosecute any women or doctor and said her office was working on next steps to dissemble the “draconian” law, which she said could come in the form of an appeal to the U.S. Supreme Court or pursuing constitutional challenges to the ban in state court.
Jake Warner, an attorney for the Alliance Defending Freedom representing anti-abortion physician Dr. Eric Hazelrigg, said they were prepared to continue to “defend unborn children here in Arizona to the extent that we can.”
Justices split
Justice John Lopez authored the opinion, with Justices James Beene, Clint Bolick and Kathryn King, all Ducey appointees joining, while Chief justice Robert Brutinel and vice chief Justice Ann Timmer dissented. Brutinel and Timmer are appointees of former Republican Gov. Jan Brewer.
Justice William Montgomery recused himself ahead of arguments in December.
The majority held, contrary to the ruling by the Arizona Court of Appeals, that the 15-week ban passed by the Legislature could not have implicitly allowed abortions.
Lopez notes the 1864 ban was codified into law multiple times after its initial passage, “even after it was enjoined by Roe,” and emphasized two provisions written into the 15-week ban “explicitly” say the law did not intend to “create or recognize a right to abortion … make lawful an abortion that is currently unlawful,” or repeal the 1864 law.
Lopez wrote the 15-week law, “was not a legislative attempt to preserve a right to abortion in Arizona; instead, it was a significant legislative restriction on elective abortion.”
The ruling further found a lack of a “trigger provision” in the 15-week law to be “of no consequence” and physicians claims of a lack of due process unfounded given the concern “centers on the co-existence” of the pre-statehood and 15-week ban.
“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal … and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation,” Lopez wrote.
In dissenting, Timmer and Brutinel argued the majority erred in failing to harmonize the two statutes.
“What the legislature did express in plain language was a statutory scheme that includes both (laws), leaving both fully intact and operative,” Timmer said. “This would mean physicians could perform abortions up to the fifteen-week gestation point or to preserve the pregnant woman’s health without incurring harsh criminal penalties.”
Both the dissent and majority deferred any future abortion policy decisions to the Legislature and Arizona citizens, leaving a likely legislative battle at lawmakers’ front step months before the election.
Republican sentiments on today’s ruling split.
Sen. T.J. Shope, R-Coolidge, and Sen. Shawna Bolick, R-Phoenix, who voted for the 15-week ban in 2022, and Rep. Matt Gress, R-Scottsdale called to repeal the territorial era ban in statements today.
Former Gov. Doug Ducey, who signed the 15-week ban into law, said today’s ruling was “not the outcome I would have preferred,” in a social media post.
Cathi Herrod, executive director of anti-abortion advocacy group Center for Arizona Policy, said the statements from some Republicans today was “disappointing.”
“When the legislature passed the 2022 law enacting the 15-week limit, that law also made it clear that the legislature and Gov. Ducey would not be repealing Arizona’s pre-Roe law,” Herrod said. “Anyone who supported the 15-week limit in 2022 also saw that the law did not repeal the pre-Roe law.”
Meanwhile, other Republican lawmakers continued to voice their support but did not rule out further legislative action.
Sen. Anthony Kern, R-Glendale, told the Arizona Capitol Times in a text, “The 4-2 ruling today by the Arizona Supreme Court was the right one and I support their decision. I will be speaking to the voters of Congressional District 08 and Legislative District 27 to see what actions, if any, the legislature should take.”
Senate President Warren Petersen and House Speaker Ben Toma issued a joint statement noting the Legislature would be “closely reviewing the court’s ruling, talking to our members, and listening to our constituents to determine the best course of action for the legislature.”
Republican federal lawmakers and candidates weighed in too. Senate candidate Kari Lake said the pre-statehood law was “out of step with Arizonans.” Reps. David Schweikert and Rep. Juan Ciscomani both put out statements condemning today’s ruling.
The cracks in Republican response comes as Gov. Katie Hobbs and Mayes, both Democrats, said today’s decision stands to motivate voters toward pro-abortion measures and candidates in November.
“This was a seismic decision, and maybe not in the way the Republicans thought it was going to be, for Arizona politics and for the election in November,” Mayes said at a press conference. “I think this changes everything. I think it supercharges, frankly, the ballot initiative, and it supercharges the elections of all pro-choice candidates.”
Arizona Democratic Party Chair Yolanda Bejarano said the Arizona Democratic Party would continue to put energy behind passing the Arizona for Abortion Access ballot initiative, flipping the state legislature and electing Democrats up and down the ballot.
But she told the Arizona Capitol Times party had “no concrete plan” on whether to campaign against the two justices who joined in the majority opinion today, Justice Clint Bolick and Justice Kathryn King, in their upcoming retention elections.
“We are pursuing everything. We’re looking at everything and talking to stakeholders and seeing what we need to do,” Bejarano said.
Beyond political ramifications, the ruling leaves a minefield of legal questions.
Prosecution remains an open question, given Hobbs’ executive order granting Mayes, who has repeatedly vowed not to prosecute any abortion cases, the power over county attorneys.
Hobbs affirmed her order remained in place today, and when asked whether she thought the order would hold up in court, she said, “Bring it on.”
On top of the Arizona Supreme Court’s 14 day stay on enforcement, a separate court order enjoins enforcement for 45 days after the high court issues its final mandate.
But Warner, on behalf of Hazelrigg, said he was under the impression the ruling allows the ban to take effect sooner rather than later and said their position was county attorneys could enforce the law after the 14-day stay.
Planned Parenthood Arizona said they would continue to provide abortions up to 15 weeks for a “very short period of time.”
Dr. Jill Gibson, Planned Parenthood chief Medical Officer, said today she had not thought much about the political calculus of the ruling but rather the “dire consequences” that wait ahead.
“I know that we have no intention of stopping the fight for abortion access,” Gibson said. “I have to be really honest, right now, I’m more concerned about what day to day is going to look like for patients.”
Abortion questionnaire bill on Ducey’s desk
Abortion questionnaire bill signed into law
Abortion restrictions target, deceive families
The constitutional right to abortion is hanging on by a thread, with the Supreme Court considering a case that directly challenges Roe v. Wade. Here in Arizona, where I provide abortion care, a recently enacted anti-choice law only adds insult to injury. My patients, many of whom are Latinx and/or immigrants, are often wary of seeking abortion care because of the cost (especially for those who are underinsured or uninsured) and because they’re understandably distrustful of medical institutions that are far too often agents of racism and discrimination. The tenuous nature of abortion rights nationwide, along with this harmful Arizona legislation, is sowing disinformation and confusion across the state for patients and health care providers alike.
Although abortion access was already severely restricted in Arizona, last year, the Legislature passed Senate Bill1457, a sweeping law that attacks abortion access in almost every way imaginable. It threatens doctors like us who provide abortion care with jail time. SB1457 passed the Arizona Legislature with only Republican votes. Before the law was scheduled to go into effect in September, the Center for Reproductive Rights and its partners sued to block two provisions of the law—one banning abortion if there is any indication that the patient is seeking care based on a fetal diagnosis, and the other granting “personhood” rights to fetuses, embryos, and fertilized eggs in a manner that threatens to criminalize essential medical care for pregnant patients. The litigation is ongoing, and the state has now appealed to the Supreme Court to be able to enforce the provision that is currently blocked, the ban on performing an abortion procedure for a fetal diagnosis.
One of the biggest impacts of this bill is how it spreads confusion and disinformation among Arizonans, especially targeting Latinx communities and other communities of color. SB1457 blocks people from accessing information to make the best reproductive health care decisions for their families and circumstances. Not only that, but providers have also been left in the dark about how the state will enforce this law. It is poorly written, and this confusion is the point. Confusion sows fear.
Advocates who track the spread of disinformation about abortion, like NARAL Pro-Choice America, see how disinformation targets Spanish-speaking communities. Some Latinx communities are even questioning whether abortion is legal anymore in the state. Anti-choice groups want people to believe that abortion has been outlawed but make no mistake—abortion is still legal in Arizona.
However, that could change if the Supreme Court overturns Roe and the 26 states (including Arizona) expected to ban abortion do so. Unfortunately, the Arizona Legislature is currently controlled by anti-choice extremist politicians. Some of them are already threatening to enact a “Texas-style” abortion ban, and Gov. Doug Ducey recently said he welcomes the opportunity to overturn legal abortion access—a position out of step with the values held by the majority of Arizonans.
At Desert Star Family Planning—the Phoenix-based center I run and where I provide abortion care at, more than a third of all patients are Latinx. Many Latinx communities have faced trauma at the hands of some medical institutions, being discriminated against, having their faith attacked, being reported to the authorities for living here illegally, being threatened with deportation, or being turned away for not being able to afford care. Twenty four percent of all patients at Desert Star Family Planning have experienced difficulty accessing care, with cost being the number one barrier.
According to the Guttmacher Institute, if Arizonans are forced to seek abortion care out of state, they could see a 2,175% increase in driving distance. This increases the cost and time it takes to access timely care. With a direct challenge to Roe before the Supreme Court, the stakes for abortion access in this country have never been higher. That’s why I joined a “friend of the court” brief in the Jackson Women’s Health case calling on the Court to protect abortion access.
With each restriction, our families are targeted and deceived as we continue to face the consequences of convoluted legislation. We deserve the truth. We deserve to understand our rights and how we can access abortion care in Arizona. Providers deserve to understand how they can provide care so that we can begin to break down the barriers that prevent Latinx and immigrant communities from feeling safe and heard when in a doctor’s office.
Dr. DeShawn Taylor, OB-GYN is owner of Desert Star Family Planning in Phoenix.
Abortion ruling could lead to stricter laws
This artist sketch depicts Mississippi Solicitor General Scott Stewart, standing while speaking to the Supreme Court, Wednesday, Dec. 1, 2021, in Washington. Center for Reproductive Rights...
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Abortion: The overlooked tragedy for black Americans
During February, which is Black History Month, it is a good time to look upon the triumphs and tragedies in African American history. Movies like Harriet tell of heroes of...
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AG defends abortion law
Arizona is free to tell women they can’t have an abortion if the reason is because of genetic fetal defect, even if it is prior to viability, the state’s top prosecutor is arguing in court.
In a new court filing, Attorney General Mark Brnovich acknowledges that SB1457, approved earlier this year by the Republican-controlled legislature, would block some women from getting an abortion in Arizona even before a fetus is able to live outside the womb. That viability standard has been the constitutional touchstone for more than 40 years in determining whether the state can interfere with what the Supreme Court has held is a woman’s right to terminate a pregnancy.
Under the law, set to take effect Sept. 29, medical professionals in violation could be sentenced to up to a year in state prison, though women who undergo these procedures are exempt from criminal prosecution.
In challenging the law last month, attorney Emily Nester of the Center for Reproductive Rights told U.S. District Judge Douglas Rayes there is a long line of federal court rulings that say the government has no role in decisions made prior to a fetus being viable.
“This ban targets pregnant people who face complex and personal considerations as a result of fetal genetic screening or diagnostic testing during routine prenatal care, including decisions about what is best for them and their families, and then intrudes upon that private decision-making by wrenching away their right to choose pre-viability abortion,” Nester wrote. And she wants Rayes to block it from taking effect as scheduled.
But Brnovich, in his latest filings, told Rayes that the law should be seen not as restricting a woman’s right to abortion but instead as extending the protections of the Americans with Disabilities Act to the unborn.
“The legislature sought to protect the disability community from discriminatory abortions, including Down-syndrome-selective abortions, and send an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, born or unborn,” Brnovich wrote, quoting from SB1457. He said the need for legislation is backed by national data he said show that between 61% and 91% of fetuses diagnosed with Down syndrome are now aborted.
And if the anti-discrimination argument doesn’t convince Rayes to uphold the law, the attorney general has another.
He pointed out that the prohibition — and the risk of prison time — exists only when the person performing the procedure “knows that the abortion is sought solely because of the genetic abnormality of the child.” And that, he contends, makes it legal because it is not an absolute ban.
“A woman is still free to seek an abortion from any provider as long as that provider does not possess knowledge that the sole reason the woman seeks an abortion is because of the unborn child’s genetic abnormality,” Brnovich said. And while Arizona law mandates that women be asked the reason for their decision, “nothing in the law compels a woman to disclose if that is the sole reason.”
He also said a pregnant woman could decide not do undergo pre-viability genetic testing.
“Neither she nor her doctor will know whether any genetic abnormality exists,” he said. Even in situations where there is a test and a genetic abnormality is found, the woman could still say it has no bearing on her decision, or that it is only one of several reasons she chooses to terminate the pregnancy.
And then there’s the conscious decision to hide the reason — or lie.
Brnovich said even when a woman is choosing abortion solely because of a fetal defect there is no danger to the doctor if she does not share that information with him or her. And the attorney general said that is true even when the doctor tells her that aborting a fetus based solely on a genetic abnormality is illegal.
Nester, however, said none of that makes the law acceptable.
“Politicians should not get to decide what an acceptable reason is for seeking an abortion,” she said. “This law is an affront to our constitutional right and our ability to make private decisions free from government intrusion.”
In filing suit, Nester said there are other problems with SB1457.
The legislation declares the laws of Arizona be interpreted to acknowledge that “an unborn child at every stage of development (has) all rights, privileges and immunities available to other persons, citizens and residents of the state.”
Brnovich, however, told Rayes that he should ignore that claim, saying there is no evidence presented about exactly how that language would be enforced.
In seeking to enjoin enforcement of the law, at least while its legality makes its way through the courts, challengers have to show a number of things. One of those is a likelihood of “irreparable injury.”
But Brnovich contends that, at least for the time being, the potential harm to doctors is “too speculative,” depending on whether or how a state court chooses to interpret the law.
That, however, still leaves the potential harm to women who might be denied an abortion. And Brnovich said the lawsuit does not identify any specific woman would be harmed, “let alone quantify how many women will seek an abortion solely for the prohibited discriminatory reason.”
He noted that in 2019, of women who provided an answer to the question of why they were seeking to terminate a pregnancy, only about 30 checked the box of “genetic risk/fetal abnormality” as one of the reasons.
And Brnovich said if a woman in that situation is denied an abortion she is free to file suit on her own to contest the restriction as it applies to her, versus voiding the law which is what challengers want.
There are two built-in exceptions to the ban.
One is when there is a “medical emergency” and terminating a pregnancy is necessary to prevent the woman’s death or protect her from “substantial and irreversible impairment of a major bodily function.” It also says doctors can perform an abortion when there is a “lethal fetal condition,” defined in the statute as one that is reasonably certain to result in the death of the child within three months after birth.
Brnovich pointed out to Rayes that this isn’t Arizona’s first foray into the area of restricting the ability of women to get an abortion, even prior to fetal viability. There’s a 2011 statute that makes it illegal to abort a fetus based on its gender or race.
Challenges to that law were unsuccessful — but only after a federal judge said there was no evidence that any woman actually had been denied an abortion because of the statute.
A hearing is set for Sept. 22.
Almost 400 new laws take effect Friday
Come this Friday, women who want an abortion will be asked new questions, consumers can have their credit frozen for free, Grade A eggs can stay on the shelf longer, and 15-year-old children won’t be able to legally marry.
There also will be new limits on the ability of cities to require public disclosure of campaign donations. And judges will be deciding who gets frozen embryos following a divorce based on who wants to actually use them.
Oh, and Arizona will have an official state dinosaur: the Sonorasaurus.
State legislators approved more than 300 measures before adjourning in May. While some took effect immediately, most kick in on Aug. 3.
And what happens that day covers a grab-bag of issues.
Law and order:
Lawmakers voted to make it illegal to have “non-disclosure agreements” that bar someone who has settled a case of sexual assault or harassment from responding to questions from police or prosecutors or making statements in any criminal proceedings.
Rep. Maria Syms, R-Paradise Valley, called those agreements a “sexual predator loophole.” She said they leave future potential victims unaware that the person with whom they are dealing has a history of harassment or rape.
And the new law makes such NDAs totally off limits if the person involved is a public official and uses public dollars for the settlement.
Another bill is a reaction to existing law and court rulings on child molestation that say someone charged with touching a child could claim that the action was “not motivated by sexual interest.”
Rep. Anthony Kern, R-Glendale, said it’s not fair to put that burden on the accused. And he questioned why someone who might be changing a diaper should have to go to court in the first place.
The measure he crafted says that child molestation laws do not apply to touching “that a reasonable person would recognize as normal caretaking interactions or responsibilities with a minor or vulnerable adult.”
Lawmakers, alarmed at the increasing presence of wrong-way drivers on urban freeways, also agreed to create a special category of offense for doing that, with a $500 fine and a requirement to attend traffic survival school. And those who are drunk while doing that will lose their licenses for at least a year.
In the traffic department, lawmakers also voted to prohibit photo radar citations from being sent out by the private companies that run these operations for cities and counties without first being reviewed by a law enforcement officer.
There also are new penalties for those who get into accidents that kill or injure others if they are driving without insurance.
And anticipate paying an extra $4 on traffic tickets to pay for police officer equipment and training.
Consumer rights:
One big change should make it easier for Arizonans to protect themselves from identity theft.
A decade ago the Legislature voted to allow credit reporting agencies to charge a $5 fee every time someone wants to lock their credit to prevent anyone else from opening a new account or borrowing money in their name.
The problem for consumers is that fee applies not on each time someone freezes a credit report but when a person “unfreezes” it to finance a purchase, such as for a new car. And putting the freeze back on logs another $5 fee.
Then there’s the fact the fee applies to each party. So for a husband and wife that same series of actions now totals $30.
Finally, there are three credit agencies, each getting to charge a fee. And since it takes contacting all three to get full protection, the cost triples to $90.
As of Friday, those fees will become illegal.
Also disappearing at the same time will be fees on gift cards. The only exception would be for bank-issued debit or reloadable prepaid cards.
But people who declare bankruptcy will get to keep more of their personal property.
In general, when people seek protection from creditors they are required to sell off assets to pay their debts. But federal bankruptcy law allows each state to decide how much individuals can keep.
Under the old law, for example, individuals could have one typewriter, one computer, one bicycle, one sewing machine, a family bible a burial plot and one shotgun, rifle or pistol if the total value does not exceed $1,000.
Now the total value is $2,000. And at the behest of gun-rights advocates, lawmakers decided that those who file bankruptcy can separately keep as many weapons as they want as long as their total value is $2,000.
And those Grade A eggs on store shelves? The new law says they can be dated as far out as 45 days from being packaged after lawmakers said they were convinced there is no health hazard.
But consumers wanting something fresher can instead seek out Grade AA eggs which still cannot be sold after 24 days.
Education:
One of the first groups to be affected are children in kindergarten through third grade: They will get at least two recess periods a day.
The new law is the culmination of a decade-long battle by some lawmakers and education advocates who contend that letting kids get up and move around actually will help their academic performance.
Prior efforts were sidelined amid concerns that more time on the playground means less time on academics. But Sen. Sylvia Allen, R-Snowflake, crafted the measure to say that the lunch break can count as one of the breaks. And the law does not specify how long each recess period must be.
Students in grades 4 and 5 have to wait until 2019 for their two recess periods.
A separate law that also kicks in on Friday also requires that play be incorporated as an instructional strategy for kindergarten and that activities be academically meaningful.
Another education bill permits substitute teachers to use classroom time to meet requirements for a standard teaching certificate. And teachers and school officials will be permitted to post the state motto “Ditat deus” in classrooms, along with the English translation of “God enriches.”
One bill falls into the category of parental rights.
It requires schools to notify parents if their child is subject to harassing, threatening or intimidating conduct. That same measure also mandates notification in the event of a suspected concussion and requires school boards to develop information on the dangers of heat-related illness, sudden cardiac death and prescription opioid use.
Local governments will now be prohibited from requiring private schools to be located on parcels of at least an acre.
And in the higher-education category, one new law requires the Board of Regents and community colleges to adopt “free expression” policies designed to allow public areas of schools to be open to any speaker invited by a student, student group or faculty member.
Business regulation:
Fears of things that might happen — but have not — took center stage on this front.
One new law spells out that local governments cannot tax groceries or restaurant food that is not already subject to state sales taxes.
That is aimed at heading off the possibility that some Arizona communities could choose to impose a tax on sodas or sugary drinks as a public health incentive to get people to give them up or drink less. That comes in the wake of such levies in places like San Francisco and Philadelphia.
Lawmakers also voted to bar local governments from requiring private employers to provide health insurance to their workers. Here, too, no Arizona community has enacted such a rule.
Another prohibits cities and counties from imposing new occupational licensing requirements unless it is “necessary to protect the healthy, safety or welfare of the public.”
Food vendors will no longer have to seek out licenses in each community they operate, with that being replaced by statewide licensing.
Companies will be able to offer new financial products to Arizonans without state licensing under a “regulatory sandbox” measure reducing oversight.
And legislators gave Arizona utilities the equivalent of a “get out of jail free” card in case voters approve a constitution amendment in November to require them to generate half their electricity from renewable sources by 2030. Unable to void a constitutional measure, lawmakers approved a proposal crafted by Arizona Public Service which would make violations subject to penalties of no more than $5,000 — and as little as $100 — effectively allowing the utilities to ignore the mandate and pay the fine instead.
Landlords are getting some relief they sought, with one new law giving a tenant 60 days to dispute itemized deductions from security deposits and another shortening from 21 to 14 days the amount of time they have to hold a tenant’s personal property.
But legislators did agree to allow rape victims to break their leases without penalty or require the landlord to install a new lock.
Health and safety:
It would not be a legislative session if lawmakers did not approve at least one measure dealing with abortion.
Existing law contains open-ended questions that health care providers are supposed to ask about the reason for the abortion. That includes whether the procedure is elective or due to some issue of maternal or fetal health.
The new statute gets more specific, with women asked about specific medical conditions and whether the procedure is being sought because the pregnancy is due to rape or incest. And women also will be questioned whether they are being coerced into the abortion, whether they are the victim of sex trafficking and whether they are the victim of domestic violence.
A somewhat related measure spells out for the first time in Arizona law what a judge hearing a divorce case must consider when there are fertilized embryos.
Current law gives judges no particular guidance if there is a dispute, with courts often deciding their fate based on a contract the couple signed while still married. This law says a court must give the embryos to the parent who promises to bring them to term, even if it is the father’s girlfriend or new wife and even if the former wife and biological parent objects.
Another new law requires the state health director to adopt rules for operation of “sober living” homes, facilities which are designed to provide a place for people to live while they are dealing with alcohol and drug abuse problems.
Individuals who wrongfully claim their pets are service animals will be subject to $250 fines.
And look out for 200-pound robots which are now authorized to make deliveries along city sidewalks.
General government:
State lawmakers gave some cover — literally — to individuals wanting to influence local races without identifying themselves.
Last year legislators voted to allow groups organized as “social welfare” organizations to spend money on statewide and legislative races without disclosing donors. As of Friday that law is being extended to local elections.
The law most immediately will overrule a vote by Tempe residents on a 91-9 percent margin earlier this year to ban “dark money” in local elections. But all that could be undone if voters statewide approve a “right to know” constitutional amendment that would trump both the state and local bans on disclosure laws.
Local governments also are now in danger of losing the ability to set their own election dates if there is evidence that turnout of at least 25 percent less than the number of people who show up during statewide elections in the same jurisdiction.
And state lawmakers have, for the first time ever, decided that 16 is the minimum age for marriage. Until now there has been no floor, with younger children able to wed with permission of a judge. And those younger than 18 could marry only with parental permission.
Under the new law, that provision remains — but only if the prospective spouse is not more than three years older than the minor.
Anti-abortion group wants to help defend state in Planned Parenthood suit
An organization that counsels women not to terminate their pregnancies wants the right to help Attorney General Mark Brnovich fend off legal challenges by Planned Parenthood to Arizona’s abortion laws.
Attorneys for the Choices Pregnancy Center contend the organization has “unique interests to defend and information to supply” in the legal fight between Planned Parenthood and the state.
Specifically, attorney Kevin Theriot told U.S. District Court Judge Jennifer Zipps that the organization is concerned that Planned Parenthood seeks to void a state law that requires a woman to wait 24 hours between her first visit to a doctor and actually getting an abortion.
“If plaintiffs prevail, many women will no longer learn – with at least 24 hours to act on that knowledge – the private agencies and services like Choices are available to assist,” he wrote. “Nor will they learn of Arizona’s list of agencies that offer alternatives to abortions, on which list Choices is specifically included.”
But Catalina Vergara, representing Planned Parenthood, is asking the judge to reject allowing Choices to intervene in the case. She said it has no legitimate interest in the laws regulating abortions as it is not a medical provider affected by those statutes.
“CPC moves to intervene in this case not to protect any concrete interests of its own, but to advocate for restricting the options of Arizonans seeking access to safe, legal abortion,” she wrote. “It has no more of a stake in this litigation than any other Arizonan who opposes women’s reproductive rights.”
Choice’s own legal filings acknowledge its aim is to deter women from terminating their pregnancy by preserving the existing laws.
“If plaintiffs succeed, more women will abort without all the information necessary to make a fully informed decision,” Theriot said. “This will cause more women to later come to regret their choice to abort and struggle with grief more anguished and sorrow more profound when they learn, only after the event, what they once did not know about the implications of their decision and the options that had been available to them.”
And there’s something else.
Theriot also told Zipps that Choices has a financial interest in the outcome of the case. He said if it has to devote more dollars to helping women with post-abortion regret it will have less money to reach out to pregnant women considering abortion in hopes of convincing them otherwise.
At stake is how many entities Planned Parenthood will have to battle in its lawsuit claiming that some provisions of existing abortion laws are unconstitutional.
One is the rule that requires patients to visit clinics in person, twice at least 24 hours apart, to receive certain state-mandated counseling before proceeding with abortion.
Planned Parenthood also is challenging statutes and rules that now prohibit anyone other than a licensed physician from providing abortions. That bars the use of nurse practitioners who are more available in rural areas than abortion-trained doctors.
And it also contests prohibitions on the use of telemedicine. Arizona law allows medical advice to be given and prescriptions to be written, after a video conference with patients, with the lone exception being when an abortion is involved.
This isn’t the first legal go-around on several of these issues.
In 2011, the state Court of Appeals upheld the restrictions, rejecting arguments that they impose undue restrictions on a woman’s constitutional right to choose to terminate a pregnancy. Appellate Judge Peter Swann also said it’s legally irrelevant that nurse practitioners, who are more available in rural areas than abortion-trained doctors, have a comparable safety record.
But in filing suit earlier this year, attorneys for Planned Parenthood cited a 2016 U.S. Supreme Court ruling that abortion restrictions need to be judged on whether they create an “undue burden” on women.
Attorney Alice Clapman said what that means, is courts look at statutes “to determine if the benefits of the restriction outweigh the burdens.” And in this case, she said, the challenged statutes are “sham public safety laws where there’s no evidence of a benefit.”
In the new lawsuit, Planned Parenthood is asking Zipps to look not just as the individual hurdles being placed in the path of women but what they say is the cumulative effect.
The law, the legal papers say, has resulted in closure of Planned Parenthood clinics in Yuma, Goodyear, Prescott Valley and Chandler. And the Flagstaff clinic can provide abortion services only one day a week.
And then there are the numbers: Bryan Howard, president of Planned Parenthood Arizona, said the cumulative effect of those laws have reduced the number of abortions performed from about 10,000 a dozen years ago to fewer than 6,500 now.
Ryan Anderson, a top aide to Brnovich, put a different spin on the numbers.
“They are literally suing because their bottom line has been impacted,” he said.
Brnovich, who is not objecting to having Crisis become a party to the lawsuit, has made no secret that he is opposed to abortion.
In his first campaign in 2014, he boasted that he was endorsed to Arizona Right to Life PAC and “named as the only pro-life candidate in the attorney general race.”
“We also have an obligation to protect and defend laws that concern the unborn,” he said in campaign materials at the time.
Arizona abortion bill approved by Senate panel
Women who want an abortion would have to tell state health officials exactly why under the terms of legislation approved Wednesday by a Senate panel. On a party-line vote, members...
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Arizona appellate court says 15-week abortion ban law of land
The Court of Appeals ruled the territorial-era abortion ban is unenforceable, making abortions in Arizona legal before 15 weeks under the most recent law passed by the legislature.
Today’s ruling provides a definitive answer on Arizona’s abortion law, which has been in limbo since the overturning of Roe v. Wade in July, but the decision will likely be appealed.
In the opinion, judges found it necessary to harmonize the existing laws and found attorney general Mark Brnovich’s position, vouching for both laws to stay on the books and allowing prosecutorial discretion in which law to enforce “would necessarily create unconstitutional conflict.”
Judges heard arguments in the case on Dec. 1.
The two primary statutes at issue were the pre-statehood ban and the 15-week ban passed by the legislature last session. The 15-week ban explicitly states it does not, “repeal, by implication or otherwise,” the pre-statehood ban.
Assistant Attorney General Mike Catlett argued the all-out ban should remain in place and coexist with other abortion statutes, arguing for prosecutorial discretion in applying the laws.
Judge Peter Eckerstrom said allowing the two to exist would only cause confusion for physicians and the people of Arizona.
Eckerstrom went on to say allowing prosecutorial discretion would allow people to be prosecuted differently for the same act and is, “specifically the evil we’re trying to avoid when we’re worried about vague interpretations of the law.”
Planned Parenthood argued the courts have a responsibility to harmonize the existing laws on abortion as the total ban contradicts the 15-week ban and other abortion laws passed in the last few decades.
Sarah MacDougall, attorney for Planned Parenthood, said harmonization would mean allowing physicians to perform abortions through 15-weeks and having the ban apply to any other person who administers an abortion.
Brnovich asked the court to lift the injunction on the 1901 law and a Pima County judge agreed in September. But Planned Parenthood filed for a stay, which the Court of Appeals granted in October.
Senate Bill 1164, sponsored by Sen. Nancy Barto, R-Phoenix, is now the law of the land. The bill effectively outlawed all abortions after 15 weeks except in a medical emergency to protect the life and health of the mother.
The law provides no exemptions for victims of rape or incest and hits any physicians who break the law with a low-level felony.
As the attorney general’s office changes hands, it’s unlikely the decision by the Court of Appeals will see a challenge by the state.
In a press conference on Thursday, incoming attorney general Kris Mayes said she would be flipping the state’s position on the 1864 ban and said she would be setting up a reproductive rights unit in the Attorney General’s office.
“I am going to declare the 1864 abortion ban to be unconstitutional,” Mayes. “I will also continue to fight for reproductive rights.”
Arizona governor asked to rescind executive order limiting prosecution of abortion-related cases
Twelve of Arizona’s 15 county attorneys are calling for Gov. Katie Hobbs to rescind her recent executive order that limits them from prosecuting abortion-related cases.
“The governor’s office should not interfere with the discretion of prosecutors in fulfilling their duties as elected officials,” said the attorneys’ letter sent to Hobbs late Monday. “Whether this was the intended purpose, the result is an unnecessary and unjustified impingement on the duties and obligations of elected county attorneys in Arizona.”
Gubernatorial spokesman Christian Slater said the governor will not be rescinding the order.
“Governor Hobbs will never stop fighting for reproductive freedoms in Arizona,” Slater said in a statement. “She will continue to use her lawful executive authority to put sanity over chaos and protect everyday Arizonans from extremists who are threatening to prosecute women and doctors over reproductive healthcare.”
Hobbs’ order signed on June 22 gives state Attorney General Kris Mayes the power to handle any attempted county prosecution under state abortion laws, bans state agencies from assisting investigations for alleged violations in other states and bans extradition of people accused of violating other states’ abortion laws.
“This executive order results in an exercise of authority not vested in the governor’s office. It is a substantial overreach to suggest the governor may strip away prosecutorial discretion from local, elected officials,” Maricopa County Attorney Rachel Mitchell wrote in a letter to Hobbs.
Mitchell is a Republican while Hobbs and Mayes are Democrats.
Abortions are currently allowed in Arizona in the first 15 weeks of pregnancy under a 2022 law. Last year, the Arizona Court of Appeals ruled that abortion doctors cannot be prosecuted under a law dating back to 1864 that criminalizes nearly all abortions. That pre-statehood law was already barred from being enforced for decades because of Roe v. Wade.
County attorneys who signed the letter to Hobbs:
Rachel Mitchell, Maricopa County, (R)
William P. Ring, Coconino County, (D)
Kent Volkmer, Pinal County, (R)
Matt Smith, Mohave County, (R)
Jon R. Smith, Yuma County, (D)
Dennis McGrane, Yavapai County, (R)
Brad Carlyon, Navajo County, (D)
Brian M. McIntyre, Cochise County, (R)
Scott Bennett, Graham County, (R)
George E. Silva Santa Cruz County, (D)
Bradley D. Beauchamp, Gila County (R)
Scott Adams, Greenlee County , (I)
County attorneys who didn’t sign the letter:
Laura Conover, Pima County, (D)
Michael B. Whiting, Apache County (D)
Tony Rogers, La Paz County, (D)
Arizona justices consider arguments on 2 laws regulating abortion
The fate of state abortion law now rests in the hands of the Arizona Supreme Court, leaving justices to mull whether to allow abortions before 15 weeks’ gestation or to reenact an 1864 law effectively outlawing all abortions unless medically necessary.
The Court of Appeals ruled in favor of Planned Parenthood Arizona last year and harmonized the statutes to find the law permitted abortions before 15 weeks while the territorial era ban outlawed anyone but a physician from performing an abortion.
Today, the state’s high court heard argument on how exactly they should harmonize the competing statutes.
Jake Warner, an attorney for Alliance Defending Freedom representing Dr. Eric Hazelrigg and the Yavapai County Attorney, argued the 15-week law only authorized an abortion after the cut off if the care was “immediately” necessary to save the life of the mother, while the all-out ban would come into play before the cut-off and authorize a physician to perform an abortion if termination was medically “necessary but not immediately required.”
But the argument caught some skepticism from the justices.
Justice Clint Bolick turned to the legislative intent written in the law, which clarifies the legislature sought to restrict “elective abortion.” Chief Justice Robert Brutinel joined Bolick and asked whether the provision barring a physician from performing an abortion before 15 weeks then refers to an elective abortion, not a medically necessary abortion.
Warner contended the law “is silent” on abortions before 15 weeks. And Warner argued in passing the law, legislators put in a provision holding “the Legislature does not intend this act to make lawful an abortion that is currently unlawful.”
He held “currently” meant when the law is interpreted.
“So, it’s current in light of what happens in the future? That seems like an unreasonable reading to me,” Brutinel said.
Brutinel went on to say the law was passed under abortion protections given by Roe v. Wade but before a decision in Dobbs, which put a similar 15-week ban from Mississippi at issue.
He said if the Supreme Court had simply upheld the 15-week ban, “what (the legislature) intended was that this statute would make abortion possible up to 15 weeks in Arizona, elective abortion.”
But, with the Dobbs decision completely overturning Roe, “they just got more than they asked for,” Brutinel said.
Andy Gaona, attorney for Planned Parenthood, noted the Legislature mirrored Mississippi’s own 15-week ban at the center of Dobbs but failed to include a trigger provision to enact the earlier all-out ban given the fall of Roe.
“If it was truly to resurrect (the 1864 ban), it’s not too much to ask the legislature to state that clearly,” Gaona said.
Joshua Bendor, solicitor general for the AG’s office, argued along the same lines.
“What’s critical is if the legislators wanted to do what the intervenors said, then they would have just included one sentence from the Mississippi law,” Bendor said. “That omission is an important statutory choice.”
Bendor further noted the 15-week law and other statutes regulating abortion incorporate “permissions and not just additional prohibitions.”
And in covering prosecutions, Vice Chief Justice Ann Timmer said running with ADF’s interpretation would create two separate criminal penalties.
“What would we do with that conflict?” Timmer asked.
And Brutinel added that physicians reading the law would find “it’s OK to do it in one context but figure out elsewhere it’s criminalized,” a prospect he called, “unusual.”
Following arguments, Warner said, “I don’t think it’s unusual at all. It’s what physicians have to do right now.”
All parties said they were “confident” the justices would take their side following arguments.
But in any case, Attorney General Kris Mayes said she would not be pursuing abortion prosecutions, “while I’m attorney general, ever.”
And she said while there were “not very many county attorneys chomping at the bit to prosecute,” she would seek to stop any county attorney from doing so, noting her supervisory authority under an executive order from Gov. Katie Hobbs putting the power to prosecute abortions solely to the AG’s office.
Mayes conceded the power granted under executive order has yet to be litigated and is likely to see a challenge from intervenor in the case, Yavapai County Attorney Dennis McGrane.
But she added she would have and will continue to block any potential prosecutions anyways.
“If any county attorney attempts to prosecute a doctor or medical provider for abortion, I will exercise my supervisory authority, and I will seek to stop it,” Mayes said. “I would have done that without an executive order.”
Mayes touched on a potential ballot measure by Arizona for Abortion Access seeking to enshrine the right to abortion into the state Constitution.
“I’m hopeful that that initiative will pass. It will end this debate,” Mayes said. “But between now and then, what this court decides will be incredibly important.”
Six of the seven justices took the matter under advisement as Justice William Montgomery recused himself amid judicial ethics concerns.
Arizona lawmaker says she announced plans to get an abortion to underscore out-of-touch laws
A pregnant Arizona lawmaker who revealed in a speech at the state Senate that she was planning to get an abortion says she wanted to share with her colleagues and the public the practical effects of abortion restrictions passed over the years.
Sen. Eva Burch, D-Mesa told fellow lawmakers in a floor speech Monday that she was going to get an abortion because her pregnancy is no longer viable. The first-term lawmaker, who previously worked as a nurse practitioner at a women’s health clinic, described a “rough journey” with fertility and recounted a miscarriage she had suffered.
Burch, 43, also criticized restrictions in Arizona as being out of touch, saying the state law requires an ultrasound that her doctor didn’t order and that she was given what she regards as disinformation about alternatives to abortion.
“It was an opportunity for me to highlight what we’re experiencing here in Arizona and how the laws that we pass in Arizona actually do impact people in practice and not just in theory,” Burch said Tuesday in an interview with The Associated Press in her legislative office.
The abortion that Burch is planning wouldn’t be her first. While running for office in 2022, Burch said she had an abortion because that pregnancy wasn’t viable and even mentioned on the campaign trail that she had undergone the procedure.
Burch, who previously gave birth to two sons, said she understands why women who have abortions keep that information private. But she said she wants the public to know that the struggles she has experienced are common.
Burch, who is running for re-election this year, also acknowledged that she wanted to shine light on a proposed ballot measure that would create a constitutional right to abortion.
“If the Arizona Legislature is not going to operate in reality, then the people of Arizona need to have an opportunity to be able to take control of some of those decisions for themselves,” Burch said.
Two abortion bills proposed this year by Democrats haven’t received committee hearings, including one that would repeal a pre-statehood law that criminalizes nearly all abortions.
The Arizona Supreme Court is considering the fate of the 1864 law. In a 2022 ruling, a lower court concluded doctors can’t be charged for performing an abortion in the first 15 weeks of pregnancy because other Arizona laws over the years have allowed them to provide abortions.
Apart from their efforts at the Arizona Legislature, abortion rights advocates began a push last summer to ask voters to create a constitutional right to abortion. If proponents collect enough signatures, Arizona would become the latest state to put the question directly to voters.
The proposed constitutional amendment would guarantee abortion rights until a fetus could survive outside the womb, typically around 24 weeks of pregnancy. It also would allow later abortions to save the mother’s life or to protect her physical or mental health.
Organizers of the effort will have to collect 384,000 signatures from registered voters by July to put the question on the November ballot.
Arizona ordered to pay Planned Parenthood’s legal fees
The state of Arizona has been ordered to pay Planned Parenthood of Arizona and other abortion providers more than $600,000 in attorney fees and other costs they spent fighting a since-repealed law.
The order signed by U.S. District Judge Steven P. Logan in Phoenix Monday comes more than a year after Gov. Doug Ducey signed a law repealing the abortion reversal law that was the subject of the lawsuit.
The 2015 law Ducey had signed required abortion providers to tell patients that the effects of an abortion-inducing drug are reversible.
Abortion providers said the law was unconstitutional because it wasn’t backed by science and made doctors give patients a state-mandated message they believed is medically wrong. 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Arizona Supreme Court to hear arguments on conflicting abortion law
The Arizona Supreme Court will hear arguments Tuesday about whether Arizona women will lose virtually all their rights to terminate a pregnancy.
Attorneys for the anti-abortion Alliance Defending Freedom want the justices to overturn an appellate court ruling which concluded that a 2022 law allowing doctors to perform the procedure through the 15th week of pregnancy overrules a territorial-era law that outlaws abortion except to save the life of the mother.
Their main argument is that Arizona lawmakers never repealed that law, even when the U.S. Supreme Court decided in the 1973 ruling of Roe v. Wade that women have a constitutional right to terminate a pregnancy.
The nation’s high court overturned that precedent last year in a case called Dobbs v. Jackson Women’s Health, returning the question of abortion to each state. And what that means, the abortion foes argue, is that the law that was in effect in 1973 that makes performing an abortion a felony is once again enforceable.
That, however, was not the conclusion of the state Court of Appeals. The judges there sided with Planned Parenthood Arizona and Pima County Attorney Laura Conover, deciding that the 2022 law can be “harmonized” with the never-repealed older ban.
Whatever the justices eventually decide – there is virtually no chance they will rule from the bench – will define the rights of Arizona women going forward.
But it remains unclear even if the court upholds the pre-1973 law whether any doctors would be prosecuted soon.
That’s because Gov. Katie Hobbs issued an executive order stripping the state’s 15 county attorneys of handling abortion cases.
Instead, she gave that to Attorney General Kris Mayes, who said she will never prosecute a doctor for performing an abortion.
The case is also unusual in that it will be heard by only six of the seven justices.
Planned Parenthood had sought to have Justice William Montgomery recuse himself based on statements he had made about the organization prior to being named to the bench in 2019 by then-Gov. Doug Ducey. He initially refused, saying nothing he said while Maricopa County attorney could affect his ability to decide the case fairly.
Montgomery reversed himself late last month, saying he sees an issue in the Code of Judicial Conduct that would require him to step aside. He did not explain.
At that point Chief Justice Robert Brutinel could have tapped a retired justice or an active judge from the state Court of Appeals to fill out the bench. But Brutinel decided against that, giving no reason.
While it is impossible to handicap how the other justices would vote, that decision could aid Planned Parenthood.
Under normal circumstances, it would need the votes of four of the seven justices to uphold the appellate court ruling. But with just six, Planned Parenthood needs just three votes, as a tie means the lower court ruling stands.
The outcome of the case also could have ripple effects in November.
Planned Parenthood and other groups are gathering signatures in hopes of putting a measure on the 2024 ballot to enshrine the right to abortion in the Arizona Constitution.
A decision by the court to keep abortions legal through 15 weeks could reduce support for a more expansive law: Out of 13,896 abortions performed in Arizona in 2021 – the most recent data available – 824, or 6%, were on women who were more than 15 weeks pregnant.
Conversely, a decision by the court to return Arizona to the pre-1973 days, when abortions could occur only to save the life of the mother, with no exceptions for rape or incest, could spur support for such a measure.
The idea that the 15-week law supersedes the older law also has drawn support from Ducey.
He was the one who signed that law in 2022, before the Supreme Court ruled in the Dobbs case.
The premise behind that law was that the justices would simply uphold a Mississippi statute with a 15-week ban. The 2022 Arizona law was designed to have a nearly identical law in place in Arizona, where, until the Dobbs decision, abortions could be performed until the point of fetal viability, generally considered between 22 and 24 weeks.
Ducey, in signing that law, acknowledged that it contained language spelling out that Arizona was not repealing the territorial-era law. But he insisted that abortions would not become illegal here even if the U.S. Supreme Court eventually did what it did — overturn Roe.
“The law of the land today in Arizona is the 15 weeks’ law,” he said in an interview at the time with Capitol Media Services. “And that will remain law.”
And Ducey said it was irrelevant that the pre-1973 law was never repealed and remained on the books.
“This law was signed this year,” he said. “I think that the law you sign in 2022 supersedes 1973.”
Less clear is how any ruling on this dispute between the two laws will have on another one that lawmakers approved and Ducey signed in 2021.
It makes it illegal for doctors to perform an abortion if they know the sole reason a woman wants to terminate the pregnancy is because of a fetal genetic defect. U.S. District Court Judge Douglas Rayes upheld that law in the wake of the U.S. Supreme Court overturning Roe, saying that eliminated the constitutional right of doctors to perform abortions and the right of patients to receive them.
But the 9th Circuit Court of Appeals said the doctors have an interest in not being penalized for what they believe is a vague law and sent the case back Rayes where it now stands.
Arizona’s legal battle over abortion likely far from over
The incoming attorney general says she won’t appeal a ruling that doctors in Arizona can perform abortions through the 15th week of pregnancy.
But that may not end the legal battle as there are others who can keep the case alive.
And regardless of what happens, Arizona’s new governor wants state lawmakers to repeal not just the territorial-era law that made virtually all abortions illegal but even the one that the state Court of Appeals just said is now the law of the land.
All this comes on the heels of the appellate court ruling Friday saying the two laws can coexist.
The judges acknowledged that a law that dates to 1864 which makes abortion a crime except to save the life of the mother never was repealed, even after the U.S. Supreme Court ruled in 1973 in the landmark case of Roe v. Wade that women have a constitutional right to terminate a pregnancy until a fetus is viable, generally between 22 and 24 weeks.
But since 1973 legislators, unable to outlaw the practice, enacted a series of restrictions, ranging from where abortions can be performed and by whom to requirements for waiting periods and, in the case of minors, parental notification. In essence, the appellate judges said, lawmakers said doctors can perform abortions as long as they follow those rules.
And the court said it’s no different with the 15-week ban, even though it was approved last year in the belief that the Supreme Court would uphold a similar Mississippi law.
More to the point, the judges said the fact that the high court totally overturned the 1973 ruling and returned the power to the states to regulate abortion did not undo all those new laws. And that, they said, means that doctors who follow those laws can’t be prosecuted under the old law.
The ruling is a loss for Attorney General Mark Brnovich who had urged the judges to allow prosecutors to decide whether they want to charge doctors who perform abortions with a crime.
But Brnovich, who made an unsuccessful bid for U.S. Senate when he could not legally seek a third term, will be out of power as of noon on Tuesday. And his successor, Kris Mayes, has said she doesn’t intend to appeal the ruling to the Arizona Supreme Court.
Only thing is, that doesn’t eliminate a possible petition to the state’s high court. And that’s because there are others involved in the case.
The lawsuit actually goes back to the 1970s when, even before Roe v. Wade, Planned Parenthood challenged the state’s abortion ban. At that time, the fight involved not just the state attorney general and the Pima County attorney but also Clifton Bloom who the court appointed as a “guardian ad litem” to represent the interests of unborn children in Arizona.
The outcome of that challenge was sealed with the 1973 Supreme Court ruling, with the state courts saying they had no choice but to follow suit and enjoin the enforcement of the territorial-era law. But when Roe was overturned last year, Brnovich reopened that case – this case – seeking to dissolve the injunction.
Bloom is now dead. And Pima County Superior Court Judge Kellie Johnson, who inherited the reopened case, agreed to let Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, be substituted in his place.
That means Hazelrigg, represented by the anti-abortion Alliance Defending Freedom, is a party – and may have the right to appeal.
“This is going to get interesting,” said Pima County Attorney Laura Conover.
She is part of the case because the original 1970s Planned Parenthood lawsuit also involved the county. But Conover, unlike her predecessor, has now sided with Planned Parenthood in arguing that the territorial-era law cannot be enforced against doctors.
And with Mayes going to also side with Planned Parenthood, that leaves everyone still involved in the case supporting the legality of the 15-week law – with only Hazelrigg in opposition if the courts allow him to continue playing a role.
There was no immediate response from ADF.
Friday’s ruling would appear to make it unnecessary for incoming Gov. Katie Hobbs to follow through with her campaign promise to call a special legislative session to repeal the territorial-era law as the appellate court ruling, unless overturned, means it cannot be applied to those legally entitled to perform abortions.
But Hobbs said that isn’t enough. She wants to also get rid of the 15-week law.
“The decision to have a child should rest solely between a woman and her doctor, not the government or politicians,” Hobbs said in a prepared statement after the ruling. And she said the 15-week law does the opposite.
“It puts the government in charge of a woman’s private health care decisions, with deadly consequences,” the incoming governor said. And once a woman has gone beyond 15 weeks, she said, it “cruelly offers no exceptions for victims of rape or incest.”
Only thing is, getting rid of that 15-week limit and returning the law in Arizona to the way it was before – meaning abortions up to fetal viability – would require legislative action. And Hobbs, in an interview with Capitol Media Services, acknowledged that could prove difficult.
“Many members of the incoming legislature voted for that,” she said. But Hobbs said that her conversations with different medical providers convinces her that the 15-week limit needs to be repealed.
One case, she said, involves a woman who was the victim of rape or incest where “the trauma was so great they weren’t able to recognize their pregnancy until it was far past the 15 weeks do to anything about it.”
The ultimate solution, Hobbs said, may rest with voters themselves.
A planned 2022 initiative to put the right to abortion into the Arizona Constitution faltered when backers did not have enough time to get signatures.
“I think there’ll be a strong effort for a ballot measure in 2024, which I will get behind,” Hobbs said.
As Arizona Supreme Court weighs abortion law, both sides brace for ruling
WASHINGTON – It’s been nearly two months since the Arizona Supreme Court heard arguments over the state’s abortion law, and its ruling in that case could all but ban abortions in the state or allow them to continue up to 15 weeks.
Both sides of the debate said they are bracing for that ruling – and waiting.
“Either way the decision goes, there are almost 50 pro-life pregnancy centers in Arizona that stand ready to help women having an unplanned pregnancy,” said Cathi Herrod, president of the Center for Arizona Policy. “Whether it’s 15 weeks or the pre-Roe ban, women will be well served by the pregnancy centers throughout Arizona.”
Eloisa Lopez, executive director of the Abortion Fund of Arizona, said she is “remaining hopeful,” but believes the court would be making a mistake if it were to uphold the state’s 19th century abortion ban.
“It would be very shocking to see the courts say that that needs to be the current law of the land,” Lopez said. “If that were the case that just shows you the ruling was politically charged.”
The court’s ruling will be the latest twist in a roller coaster of abortion rulings that began in June 2022, when the U.S. Supreme Court said in Dobbs v. Jackson Women’s Health that the decision on abortion rights should be left to the states. In doing so, the court reversed its landmark 1973 ruling in Roe v. Wade, that recognized a right to an abortion.
That sent abortions in plummeting in Arizona, as in many other states.
“Before the Dobbs decision, more than 1,300 abortions were provided per month by health care providers in Arizona,” Dr. Alison Norris, co-chair of the research steering committee of the Society of Family Planning’s #WeCount project. “In the month following, it dropped down to 210 because there was such uncertainty that some providers were no longer providing abortions within the state.”
But abortions in Arizona have since climbed back toward pre-Dobbs levels, as lower court rulings sided with the 15-week law.
“The numbers went back up to 720 in August (2022) and got back up to 1,000 in January (2023). Over the last several months it has generally stayed around 1,000 per month,” Norris said.
The reversal of Roe triggered long-dormant abortion bans in some states, and led others to codify abortion rights, but Arizona has been caught in the middle.
Shortly before Dobbs, a new Arizona law set the limit for abortions at 15 weeks of pregnancy – but that bill also included language preserving the 1864 abortion ban, in case Roe was overturned. Despite that language, abortion rights groups argued that the 19th century law was trumped by decades of state abortion regulations and legal abortions.
“In Arizona, and in several other states, Dobbs created a lot of uncertainty,” Norris said. “It was unclear to lawmakers, health care providers and patients themselves what was permitted due to laws that were on the books from before Dobbs and even before Roe v. Wade.”
A Pima County Superior Court judge ruled in 2022 that the old law was still in effect. But that ruling was reversed on Dec. 30, 2022, by the Arizona Court of Appeals, putting the 15-week law back in place.
That decision was appealed to the state Supreme Court, which heard arguments on Dec. 12, 2023.
Herrod says framing the abortion ban as a territorial-era law, as opponents do, is “slanted.” Because the law was never repealed, she said, it should still be enforceable.
“The only reason the pre-Roe law had not been in effect during that time was because of the Roe v. Wade decision,” Herrod said “The state legislature never repealed it so it could still be enforceable.”
Lopez thinks the 15-week ban – which would have not been possible under Roe – is too restrictive, but she says a return to an abortion ban would have far-reaching consequences.
“Some of the clinics now are more well-women’s clinics where they offer other services in addition to abortion care in the existing clinic,” said Lopez. “It (restoring the ban) would make it very challenging for these clinics to keep their doors open.
“There would be providers who, like after Dobbs, would take a significant hit to their clinics financially,” Lopez said.
Herrod disagrees, saying an abortion ban could help providers focus on other women’s health issues.
“Abortion is not health care. Abortion is not pregnancy care. Abortion hurts women. Abortion takes the life of an unborn child,” she said.
But Lopez rejected what she called the “absurdity of enforcing the law from a time when none of us were around,” a law that would not just ban abortions but criminalize providers.
“That law also bans the advertisement of contraceptives, so that could have ramifications on birth control which could really have an unraveling effect because that would affect so much,” Lopez said.
“The best-case scenario would be the judge strikes down an 1864 law and says that is not the current law of Arizona,” she said. “That means we would keep the current status-quo which is the 15-week ban.”
Assuring reproductive justice would make AZ truly pro-life state
On January 22, we marked the 48th anniversary of the Roe v. Wade decision. Prior to 1973, access to abortion wasn’t considered a right in America. Many women, especially poor women, were forced to choose between an untenable pregnancy, death or serious injury from a dangerous black-market abortion – even if pregnancy itself was a threat to their life or health.
Sadly, for far too many in 2021, it might just as well be 1972.
Imagine getting off work from your minimum wage job and stopping at the grocery store to pick up a few things. You walk past the family planning aisle and it occurs to you that your period is late, in fact, it’s two weeks late. Money is so tight you actually have to decide between a pregnancy test or milk for the week. You choose and purchase the pregnancy test. You rush to take it, hoping it’s not positive. As the seconds slow to minutes, you wonder what you’re going to do if it does indeed come back positive.
Time’s up, you pick up the test, and there it is – positive.
While for many, this moment is an exciting new chapter in their lives, for others it is not. In Arizona, many people face this situation every day. If they choose to seek an abortion, they are met with several barriers intended to prevent them from exercising their constitutional right and shame them for their choice.
Our governor has bragged many times that Arizona is among the most “pro-life” states in the country. He, of course, is referring to the myriad regulations designed as barriers to those seeking abortion care in Arizona. Waiting periods, in-person visit requirements, admitting privileges conditions and more all combine to deny access to what is supposed to be constitutionally protected health care. None of these laws were enacted to protect women’s health, despite what their authors may claim. None of them actually enhance the safety of abortion, which is one of the safest medical procedures there is. No. They are designed to thwart women’s free will, to make abortion as humiliating, difficult and expensive as possible. This is how the extreme wing of the pro-life movement attempts to reduce the number of abortions – power, control, and stigma.
We believe the tenets of reproductive justice can create a truly pro-life Arizona. An Arizona where a single mom can earn enough to support her family. Where child care is safe, high quality and affordable. Where teachers have the resources they need to prepare the next generation. Where Black people,indigenous people, and people of color have the same protections and opportunities as their white brethren. Where all communities have a clean environment, air that is fit to breathe, and police who work alongside communities to assure safety. Where a woman, wherever she lives, can access reproductive health care, including abortion.
In the same week we marked Roe v Wade, we inaugurated a new president. Many of us are full of hope for the future – for an end to division and hate, and a new era of cooperation. Wouldn’t it be something if those opposed to abortion worked together with us to reduce unplanned pregnancies (and thereby abortions) in the first place?
And what if we all advocated for the things that assure reproductive justice? Safety. Equality. Opportunity. If we all were focused on making sure every woman had the means to prevent pregnancy, access to a legal abortion when needed, and the ability to welcome a child into a secure and just world, then Arizona would truly be a “pro-life” state.
Jodi Liggett, founder of Arizona Center for Women’s Advancement, wrote this commentary in collaboration with Americans United for the Separation of Church and State; Greater Phoenix; Arizona Coalition to End Sexual and Domestic Violence; Rep. Athena Salman, D-Tempe; Sen. Juan Mendez, D-Tempe; Gabriella Goodrick, MD., Camelback Family Planning; Michael Soto, executive director, Equality Arizona; National Council of Jewish Women, Arizona; NARAL Pro-Choice Arizona; and Planned Parenthood Advocates of Arizona.
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Bill would help meet needs of women who don’t want abortion
Dear Editor,
When I volunteered with a pregnancy resource center, many of the women I met didn’t want to choose abortion but felt they didn’t have a choice due to lack of resources or support.
Senate Bill 1251 would direct funds for a family health pilot program in Arizona that would help pregnant women and adoptive families find the resources they need. There are many resources available for women, but they are not readily known or easy to find. This program would help meet the needs of women so they can care for their families.
I support SB 1251 and I encourage you to as well.
Hannah Woodruff
Phoenix
Bills would insert politicians into private, medical decisions
Editor:
On February 25, U.S. Sen. Martha McSally, R-Ariz., demonstrated just how out-of-touch she is with the people of Arizona when she voted in support of two pieces of anti-choice legislation designed to attack reproductive freedom through dangerous disinformation about abortion. I was shocked and disappointed to see a guest column on the Arizona Capitol Times website on February 25 peddling the same harmful disinformation in an effort to promote political interference in deeply personal family decisions.
The two bills referenced in this week’s column and supported by McSally are part of a coordinated effort between Republicans and the anti-choice movement to weaponize disinformation in hopes of distracting from their unpopular agenda of banning abortion. The truth is, supporters of this legislation are using inflammatory terms not grounded in medical science in an effort to mislead Arizonans and push forward an extreme agenda to ban abortion. What these bills would really do is insert politicians into Arizonans’ personal decisions about pregnancy, often in devastating circumstances when something has gone terribly wrong with a pregnancy or a baby is dying and can’t survive for long.
Most of us try to live our lives without interfering in other people’s lives. When families are making difficult, complicated, personal medical decisions, one-size-fits-all laws don’t work. Arizonans know this – that’s why a majority support safe and legal access to abortion.
When it comes to abortion or pregnancy loss, politicians in Washington, DC and Phoenix cannot know what every woman and her family is going through. They are going to hurt real people in complicated situations, people who are trying to make the best decisions for their families, often when faced with heartbreaking news. We need elected officials to stand with the majority of Arizonans who support a woman’s right to make personal decisions about pregnancy free from interference from politicians.
Caroline Mello Roberson is Southwest regional director for NARAL Pro-Choice America.
BREAKING: Abortion in Arizona outlawed
Arizona’s territorial-era law outlawing abortion except to save the life of the mother is enforceable, the state Supreme Court ruled Tuesday. In a split decision, four of the justices said...
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Brnovich argues state can have 2 different abortion laws
Attorney General Mark Brnovich says there’s nothing legally wrong with having two different statutes on the books outlawing abortion because prosecutors can choose which one to enforce.
Or whether to enforce neither.
And hanging in the balance is the possibility that doctors who say they are following one law could still be sent to prison if a prosecutor decides to bring charges based on the other.
The claim comes as Brnovich is trying to convince the state Court of Appeals to rethink its conclusion that a trial judge has to “harmonize” a law going back to 1864 that pretty much outlaws the procedure with a new statute that allows abortions through the 15th week of pregnancy. Attorneys from Planned Parenthood Arizona are arguing that can be done by reading the new law as applying to doctors, keeping the territorial-era law only for those who are not medical professionals.
Brnovich, in a 70-page legal filing, said that argument is ridiculous on its face.
He pointed out the old law makes it a crime for a “person” to perform an abortion except to save the life of the mother. Violators face a mandatory penalty of between two and five years in state prison.
That law was effectively placed on hold by the 1973 U.S. Supreme Court ruling in Roe v. Wade which declared that women have a constitutional right to terminate a pregnancy until a fetus is viable, considered between 22 and 24 weeks.
In June, however, the justices overturned their own precedent, saying states are again free to enact their own abortion restrictions.
Brnovich said that reactivated the old law, which never was repealed. And he then got a trial judge to dissolve a state-issued injunction against its enforcement which was enacted after the original Roe decision.
All that, he argued, returns the law to what it was – including who could be punished. And that, he said, includes doctors who clearly are “persons” under state law.
“When the statute was enforced prior to the 1973 injunction, licensed physicians were not excluded from prosecution,” he told the appellate court.
It is true, Brnovich acknowledged, that lawmakers, acting before the Supreme Court overturned Roe, enacted the 15-week ban. But he told the appellate judges that does not permit them to conclude that this new law effectively exempts doctors from punishment under the old law.
“It is well-settled that the Legislature defines crimes and their elements, and courts may neither add nor subtract elements to those definitions,” the attorney general said.
More to the point, Brnovich argued that just because the same conduct is covered by two different laws – with different penalties – does not make it illegal.
“Local prosecutors have independent discretion to choose which statute to enforce,” he said. “Regardless of which statute a local prosecutor chooses to enforce, that choice does not mean the other abortion statutes conflict.”
And Brnovich said that is true here.
“If a licensed physician performs an abortion at a time during pregnancy when more than one criminal statute applies, then the decision whether to prosecute and what statute or statutes to apply belongs to the prosecutor,” he said. “Such prosecutorial discretion – even when a local prosecutor chooses the statute with a harsher penalty – does not render statutes left unenforced superfluous.”
And Brnovich said that is particularly true in cases like this, where lawmakers enacted the new law and did not repeal the old one, that the Legislature did not intend one of them to be the exclusive means to punish such conduct.
Of course, he acknowledged, that discretion by prosecutors goes beyond picking which law to use when bringing charges for performing an abortion. It also means they could decide, for whatever reason, not to bring charges at all, even if there is a violation of one or both laws.
But Brnovich said doctors cannot legally demand that they be subject only to the 15-week ban – and be exempted from prosecution under the older one.
“Unless the physician can establish that the county attorney’s choice among statutes discriminated against a particular class of defendants, there is no violation of due process in granting such prosecutorial discretion,” Brnovich said.
The judges will hear arguments at the end of the month.
Brnovich asks judge to let him enforce abortion law
Attorney General Mark Brnovich wants a judge to let him start enforcing a law prohibiting certain abortions despite a federal court ruling which found it unconstitutional.
In new legal filings, Brnovich is telling U.S. District Court Judge Douglas Rayes that he misinterpreted the law when he barred the state last month from making criminals out of doctors who perform abortions knowing the woman’s reason is a genetic fetal defect. And he contends that nothing in U.S. Supreme Court precedent, going back to the historic 1973 ruling of Roe v. Wade, guarantees a woman has a right to terminate a pregnancy for any reason she wants, even before a fetus is viable.
He also pointed out that the high court is set to review the issue of whether a state can ban pre-viability abortions, though Brnovich conceded that, for the moment, there is no ruling to that effect.
Instead, Brnovich is giving Rayes a laundry list of reasons why the state has a “compelling interest” in keeping doctors from terminating pregnancies when they are aware that the woman’s sole reason for not wanting the baby is a genetic defect. That includes “eradicating historical animus and bias against persons with disabilities” and sending a strong message that even as genetic testing advances “the state will send a message that it will not permit those advances to result in eugenic abortion.”
And Brnovich argues that ensuring the birth of more people with disabilities “will ensure that the existing disability community does not become starved of resources for research and care for individuals with disabilities.”
He also said Rayes has to consider the “irreparable harm” of preventing the state from enforcing the law while Brnovich asks the 9th Circuit Court of Appeals to overturn the ruling.
“While the law is enjoined, doctors can continue performing abortions knowing that the abortion is sought solely because of a genetic abnormality,” the attorney general said. “This certainly constitutes irreparable harm.”
All of that, Brnovich said, should allow the state to halt these abortions and prosecute doctors who perform them while he appeals the trial judge’s decision.
But getting Rayes to give the go-ahead to enforce a new law he blocked just last month could prove difficult.
The judge specifically ruled that the statute, approved by the Republican-controlled legislature, places an undue burden on women. And that, the judge said, outweighs any interest the state claims to have in promoting life or prohibiting discrimination.
Hanging in the balance is a law that makes it a felony for anyone who performs an abortion knowing that the reason is “solely because of a genetic abnormality of the child.” Anyone found guilty can be sentenced to a year in state prison, though there is no penalty on the woman.
Rayes found several problems with the law, starting with the question of at what point a doctor is presumed to know the reason the woman wants to terminate the pregnancy and therefore would be breaking the law. The judge pointed out that it often is not black and white.
“For example, patients sometimes report that they are terminating a pregnancy because they lack the financial, emotional, family, or community support to raise a child with special and sometimes challenging needs,” Rayes explained. “If a doctor accepts money to finance such an abortion … can that doctor face felony prosecution or a civil lawsuit?”
More significant is that conclusion the law places an undue burden on women seeking to terminate a pregnancy.
“A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable without undue interference by the state,” Rayes said, citing prior court rulings.
Rayes did agree with Brnovich on one point: The law is not an absolute bar to such abortions. The state argued that a woman, denied an abortion after telling a doctor the reason, can simply go to another and withhold the information or lie.
But the judge said that doesn’t make the statute any more legal — or enforceable. He said the law, rather than encouraging women to choose to give birth, which is a permissible goal, instead “is designed to thwart them from making any other choice.”
In asking Rayes to stay his ruling, Brnovich also claims that the injunction the judge issued can be justified only if the law operates as a substantial obstacle to abortion “in a large fraction of the cases.” The attorney general claims there is no evidence that it actually would create such an obstacle for any woman, let alone a large fraction.
Brnovich said there is no record of how many women in Arizona terminate their pregnancy solely because of a genetic defect. He cited data from the Department of Health Services that no more than 191 women voluntarily reported that they were seeking an abortion for that reason.
Rayes, however, said it is Brnovich who is citing the wrong standard.
He said the number of women there are in Arizona — or even the number seeking an abortion — is irrelevant as the new law would not affect them at all. What is relevant, Rayes said, is the percentage of women who want an abortion due to a fetal genetic defect but would be denied it.
And he rejected the argument that this is based on pure numbers.
“A court may make a qualitative judgment based on the evidence and common sense and need not conduct a mathematical determination of the fraction,” the judge wrote in his ruling.
Rayes has not set a date to rule on Brnovich’s request to enjoin his own ruling.
Brnovich, a Republican candidate for U.S. Senate, has staked out a strong anti-abortion position, even to the point of having his office write legal briefs urging the U.S. Supreme Court to uphold bans and restrictions imposed by other states. He even signed onto a legal brief urging the justices to overturn the Roe v. Wade.
CD6 foes make false allegations against each other
Candidates in a competitive new congressional district are lobbing false allegations at one another in ads over abortion and police support.
Republican Juan Ciscomani claimed in an ad that his opponent, Democrat Kirsten Engel, wants to “defund the police,” which she denied. She claimed in an ad that Ciscomani wants an abortion ban with no exceptions, and wants to prosecute women who seek abortions, which Ciscomani denied.
After last year’s redistricting process, the new 6th Congressional District emerged in Congresswoman Ann Kirkpatrick’s district, but Kirkpatrick, a Democrat, isn’t running for re-election.
Without an incumbent running, the race between Ciscomani and Engel is neck-in neck.
“My opponent Kirsten Engel is lying to distract from her extreme record. Engel is supported by Nancy Pelosi, she’ll make inflation worse, defund the police and release criminals,” Ciscomani said in his ad titled “The Truth.”
Ciscomani’s campaign consultant Daniel Scarpinato said the basis for this claim is the fact that Engel is endorsed by the pro-abortion nonprofit NARAL Pro-Choice America. NARAL tweeted last year that it wants to defund the police. Engel also used to work as an attorney for Earthjustice, which was then called the Sierra Club Legal Defense Fund. Earthjustice said online that it supports some form of defunding the police in 2020.
“Kirsten Engel does not and has never supported defunding the police,” Engel’s campaign manager Sophia Brown said in an email. “With this ad, our Republican opponent is unfortunately continuing his pattern of lying to and misleading Arizona voters. Engel supports fully funding our police and ensuring law enforcement have the resources to keep our communities safe and secure our border. The Pima County Sheriff has endorsed Engel because he knows he can trust her to keep Arizona families safe.”
Engel issued a press release on September 29 claiming that Ciscomani was avoiding a debate with her because he didn’t want voters to know about his “extreme” abortion views. There was plenty of finger-pointing between the candidates on who is dodging a debate.
Ciscomani did not debate Engel on PBS and Engel did not appear to debate Ciscomani in an event hosted by the Casa Grande Dispatch. A debate tentatively scheduled for next week was cancelled by the moderator, Arizona Public Media, which did not respond to requests for comment.
In the press release, Engel accused Ciscomani of supporting Arizona’s territorial era near-total abortion ban.
“Ciscomani proudly supports extreme abortion bans like the near-total 1901 ban that just went into effect in our state, which has no exceptions for rape or incest,” the release said. “Extreme, dangerous Republicans like Ciscomani are completely out of step with the needs and values of Arizonans. Is Ciscomani hiding from the voters to avoid answering for his radical and unpopular views?”
Scarpinato responded quickly that Ciscomani wants exceptions to abortion bans in cases of rape, incest and to protect the life of the mother. Arizona’s 15-week abortion ban from this year and territorial-era ban both include exceptions for the life of the mother, but not for rape or incest. As a result, Scarpinato said that Ciscomani doesn’t fully support them.
Ciscomani expressed the same stance weeks ago in an interview with the Arizona Daily Star.
“I’m also on record as [women] have to make these choices about their health to be able to offer the right exceptions for the terrible act of rape, or incest, or definitely the life of the mother. These are all exceptions that I’ve been on record as supporting,” Ciscomani told the Daily Star on September 8.
On September 9, Engel released an ad claiming that Ciscomani supports an abortion ban with no exceptions. The ad even claims Ciscomani is in favor of “locking up doctors and even trying them for murder.” Scarpinato said that is not true.
Brown said that Engel’s claim is based on comments Ciscomani made celebrating the United States Supreme Court decision to overturn Roe v. Wade and refer abortion laws back to individual states. They did not provide evidence that Ciscomani supports a ban with “no exceptions.”
On October 3, Engel released another ad titled “Peas” in which she doubles down on her claims about Ciscomani’s abortion views. She further claims in the ad that Ciscomani wants to prosecute women who get abortions.
“Ciscomani would let states outlaw abortion. No exceptions. Making women and doctors criminals,” Engel said. Neither state law allows women to be prosecuted, only doctors.
Scarpinato said that Ciscomani does not want women to be prosecuted.
Controversial abortion bill signed into law
Arizona Gov. Doug Ducey on April 27 signed the state’s most far-reaching anti-abortion measure in years, criminalizing providing abortions sought because of a genetic abnormality.
The bill, which passed both the House and Senate on party-line votes, also contains a section declaring that the state considers fetuses humans with all associated rights from the point of conception – though there is an exception for embryos created for in vitro fertilization.
“There’s immeasurable value in every single life — regardless of genetic makeup,” Ducey said in a written statement. “We will continue to prioritize protecting life in our preborn children, and this legislation goes a long way in protecting real human lives.”
Bill sponsor Nancy Barto, a Republican senator from Phoenix, framed her measure as way to protect the most vulnerable. But Democrats who fought against the bill said it doesn’t actually help people with disabilities.
“This bill is an attempt by anti-abortion groups to co-opt the mantle of disability rights,” Sen. Rosanna Gabaldon, D-Green Valley, said in Senate debate on the bill.
Just a few weeks ago, the measure looked likely to die. Sen Tyler Pace, R-Mesa, joined 14 Senate Democrats in voting against it, saying he had issues that could not be resolved.
Days later, under pressure from abortion rights opponents and his fellow Republican lawmakers, Pace agreed to a series of maneuvers to revive the bill and attach new amendments. He served on a conference committee that declined to hear testimony, leading advocates with Planned Parenthood of Arizona and other supporters of abortion rights to rally outside the Senate leading up to the meeting and retreat to a House conference room to watch the debate on TV.
Among the activists was Phoenix mother Morgan Tucker, who told the Arizona Capitol Times that she wasn’t comfortable yelling into a microphone. But, because Republicans who ran the committee wouldn’t let her testify, it was the only way she could share her story.
Last spring, Tucker and her husband were delighted to learn that they were expecting fraternal twins. Their joy dissipated when they learned that their unborn son had a heart defect causing blood to come into his lungs.
If her pregnancy continued, doctors told Tucker, her son wouldn’t survive. But beyond that, both Tucker and her unborn daughter would be at risk. Her physicians advised that the safest option was a selective reduction – a procedure that required her to travel to Los Angeles and pay $9,000 out of pocket.
“My daughter is here today and she has her mother here today, because we had that care,” she said. “They’re not taking into consideration the fact that every single pregnancy and birth is so unique, and we can’t have a blanket agenda placed over it because there’s always going to be a case like mine.”
Amendments that brought Pace on board aim to protect physicians who give advice like the counsel Tucker received. The version of the bill signed by Ducey exempts abortions provided if the doctor determines that a genetic abnormality would kill the baby within three months after birth.
And the amendment supported by Pace would only make it illegal for doctors to provide abortions sought “solely” because of a genetic abnormality. A woman could still choose a number of other reasons, including simply electing to have an abortion as she has had the right to do since the Roe v Wade decision in 1973, without risking her doctor’s freedom.
Opponents warned that the bill could deter more doctors from practicing medicine in Arizona, at a time when the state already has a shortage of medical professionals, particularly in rural areas.
“Why come to a state to practice medicine when the state legislature will turn you into a criminal for doing your job?” Asked Sen. Kirsten Engel, D-Tucson.
But supporters, including Sen. Kelly Townsend, a Mesa Republican who also works as a doula, said that they don’t view abortions as health care.
“We need to be honest with ourselves,” Townsend said. “Aborting a child because there’s a genetic abnormality is not health care. You’re euthanizing a child.”
The governor last week signed a bill that would require the state to post an online list of agencies that guide pregnant women to adoption resources that have no affiliation with organizations that also provide abortion services. A proposal to spend state money on “crisis pregnancy centers” that also counsel women away from seeking abortions is expected as part of budget negotiations.
In signing the bill, Arizona becomes one of only a handful of states with such a restriction.
It also potentially opens the state up to litigation. While a federal appeals court has upheld a similar law in Ohio, the U.S. Supreme Court has never decided whether this kind of blanket rule runs afoul of its precedents limiting the right of states to interfere with a woman’s decision to terminate a pregnancy prior to a fetus becoming viable.
Howard Fischer of Capitol Media Services contributed to this report.
Costly Consequences: The Irony of the Equal Rights Amendment
Public policy often sounds better in theory than it plays out in reality. The Affordable Care Act, The Patriot Act, The Women’s Reproductive Health Care Act have all been criticized for arguably not living up to their names. The same will be said of the Equal Rights Amendment (ERA), should it pass the many hurdles ahead.
Some Arizona lawmakers are trying to revive the effort to ratify the ERA, which would purportedly eliminate sex discrimination in the law. Who can disagree with equal rights for women? No one. That is why we have accumulated countless federal, state, and local laws prohibiting sex discrimination. Also, the U.S. Supreme Court has repeatedly held that the Equal Protection Clause of the 14th Amendment protects women from discrimination. Current law already requires equal pay for men and women. The University of Arizona faces a lawsuit based on the Equal Pay Act and the Civil Rights Act. Clearly, current laws are working.
Proponents of the ERA point to a wage gap of 80 cents on a man’s dollar, but they leave out critical variables. Women typically work fewer hours than men; they choose different education and training; they choose different career paths, and they take time out of the work force or choose working from home over higher wages. When these variables are taken into consideration, the “unfair wage gap” vanishes.
Passing the ERA would do nothing to further equal rights, including equal pay.
Not only is the ERA unnecessary, but the use of 1972 language in a 2019 America brings critical consequences. When the ERA was introduced, prohibiting “sex discrimination” meant discrimination against women. Today, courts have interpreted the word “sex” to include one’s gender choice. That changes everything because “sex discrimination” could then eliminate any distinction between male and female, regardless of biological differences.
The result is sweeping. When the law conflates equality with sameness, women’s locker rooms at school or the gym become illegal. Public restrooms, showers, domestic violence shelters, and sporting events can no longer be exclusively male or female. That violates privacy and puts women and children in danger of those who would exploit the law to access victims.
Perhaps the most egregious consequence of a 2019 ERA is its effect on abortion. The ERA could enshrine abortion into the U.S. constitution by arguing such a procedure cannot be treated any differently than other medical procedures for a man. Abortion activists in New Mexico and Connecticut have already successfully made that case based on their state ERAs.
This not only makes abortion a routine medical procedure, but it could very well rollback any commonsense restrictions of abortion. Such extreme abortion laws, similar to ones in New York and pending in Virginia, do not reflect Arizona’s values.
Curiously, proponents almost completely ignore the inconvenient fact that the ERA deadline for ratification passed 37 years ago. Supreme Court precedent indicates congressionally imposed deadlines cannot be overlooked.
Any ERA effort would have to start all over accumulating 38 state ratifications. At least that would provide opportunity to clarify the language. Because as it stands now, a resolution claiming to strengthen women’s rights, could actually end up stripping us of the ones we already possess. We have seen this kind of irony before. Arizona lawmakers should reject the ERA and its costly consequences.
Cathi Herrod is president of Center for Arizona Policy.
Court keeps hold on abortion law in place
A federal judge has turned back a bid by Attorney General Mark Brnovich to let the state start enforcing new abortion restrictions despite his order concluding they are likely unconstitutional.
In a brief order, U.S. District Court Judge Douglas Rayes said the attorney general misread his Sept. 28 order telling the state it cannot make felons out of doctors who perform abortions for women due to a genetic fetal defect.
The judge said Brnovich is emphasizing his findings that, strictly speaking, a woman possibly could still find a doctor to perform the abortion. But Rayes said the attorney general is ignoring the rest of the order where he found the law “likely would make it substantially more difficult for women seeking to terminate their pre-viability pregnancies because of a genetic fetal abnormality to receive constitutionally protected care.”
Rayes also said Brnovich is misstating the law about when a judge should stay his own order and allow a law he has found unconstitutional to take effect.
He said that the attorney general, at best, is claiming there is “some possibility” of irreparable injury to the state because it cannot enforce a law approved by the Legislature. But the judge said for him to let the state start enforcing the law despite his order, Brnovich would first have show a probability of irreparable injury, something he has not done.
In fact, Rayes said, if anyone is likely to suffer an injury it would be the women who would be denied their constitutional right to terminate a pregnancy.
All this means that, at least for the time being, the new abortion restriction remains unenforceable.
Brnovich press aide Katie Conner said Tuesday her agency “will continue to use the tools in our
toolbox to defend the law as it is.” And that, she said, means pursuing an appeal.
The measure, approved earlier this year by the Republican-controlled Legislature, makes it a crime for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure solely is a genetic abnormality.
The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman. All that comes against the backdrop of a line of Supreme Court rulings, dating from the historic 1973 decision of Roe v. Wade, which bars states from forbidding a woman from terminating her pregnancy prior to viability. That is the point at which a fetus can live outside the womb, presumed to be somewhere between 22 and 24 weeks.
The Center for Reproductive Rights, abortion providers and others sued, charging that the law ran afoul of those precedents. They argued that a doctor cannot perform an abortion once he or she knows the woman’s reason, effectively becoming an absolute ban on the procedure.
In his ruling, Rayes did agree with Brnovich on one point. He said the law was not an absolute bar to a woman carrying a child with a genetic defect from getting an abortion. That’s because a woman, denied an abortion after telling a doctor her reason, is free to seek out another provider and keep her reason secret, or lie about it.
But Rayes, in his new ruling, said that work-around is not enough to allow the state to keep enforcing the law while it seeks an appeal. He said it still amounted to a burden on the constitutional rights of women to terminate a pregnancy. At the same time, the judge brushed aside the claim by Brnovich that the state, unable to enforce its laws, was itself suffering an irreparable harm.
“Defendants’ argument overstates the injury to Arizona and minimizes the harms to plaintiffs and their patients,” Rayes wrote, calling any harm to the state “abstract.” “Although a state suffers a form of irreparable injury whenever it is enjoined from implementing its laws, that injury alone does not support a stay when balanced against a stay would impose on others,” he said.
Rayes also took a swat at Brnovich for asking permission to enforce only part of what the judge had enjoined the state from enforcing. He pointed out that his order last month also barred Arizona from requiring doctors to sign an affidavit stating that the abortion is not being performed because of a genetic abnormality and that the doctor has no knowledge that is the reason.
It also required doctors to tell patients that Arizona prohibits abortion because of a genetic abnormality as well as for doctors to file certain reports with the state health department.
“Defendants’ argument about the harms to a state whenever it is enjoined from enforcing a democratically enacted law is undermined by their decision to appeal only a portion of the court’s preliminary injunction order,” Rayes wrote. “Evidently this harm is tolerable as it pertains to other enjoined portions of the act.”
Court losses piling up for anti-abortion legislation, cost state millions
The state of Arizona has been ordered to pay roughly $2.2 million in legal fees in the past eight years to organizations that challenge restrictive abortion laws adopted by the Republican-controlled state Legislature.
Some of those court orders are more than a decade in the making, like a challenge to a 1999 law with sweeping regulations of abortion providers that was finally settled in 2010, to a more recent case dealing with questionable medical advice the state required physicians to give to patients seeking medication abortions, for which a U.S. District Court judge ruled in August the state must cough up more than $600,000 in attorneys’ fees.
Just this week, the state and Planned Parenthood of Arizona settled the case for a sum of $550,000 in attorney fees.
Those court ordered payments, the result of five cases the state has either lost, settled or been nullified by legislative repeal, don’t include the costs to the Attorney General’s Office, which spent more than 3,300 hours and an estimated $173,500 defending the state in four such cases, according to an analysis of expense records and time sheets provided by the attorney general.
All told, that’s roughly $2.32 million spent defending laws that legislators were warned may not pass muster in court.
[Story continues after graphic.]
- Tucson Women’s Clinic v. Eden
- Arizona Coalition Against Domestic Violence v. Arizona Department of Revenue
- Isaacson v. Horne
Lawmakers approved HB2706 in 1999, and the lawsuit stemming from it would span for more than a decade. Known as a TRAP bill, or “targeted regulation of abortion providers,” the Center for Reproductive Rights filed a complaint on behalf of several Arizona physicians. The law was ultimately enjoined by the 9th U.S. Circuit Court of Appeals in 2004. The state then negotiated with plaintiffs to reach a settlement that was ultimately finalized in April 2010. The Center for Arizona Policy notes on its bill tracker that the law was overturned in court. ATTORNEY FEES: $389,000
In 2011, lawmakers approved a bill sponsored by then-Rep. Debbie Lesko, R-Peoria, that sought to prevent Arizona donors from receiving tax credits if they make financial contributions to abortion providers. Challengers never objected to that part of the law. However, the Arizona Coalition Against Domestic Violence took issue with part of the law that banned even organizations that “promote” abortion or refer clients to abortion providers from being eligible for the state’s list of tax credit-eligible groups. The coalition, along with the American Civil Liberties Union of Arizona, blocked the law in court. Lesko sponsored a different bill in 2012 that omitted the problematic referral language. ATTORNEY FEES: $56,711.15
The Center for Reproductive Rights took the lead in this case challenging a 2012 law, sponsored by then-Rep. Kimberly Yee, R-Phoenix, which sought to place a 20-week ban on abortions on behalf of several Arizona physicians. The 20-week ban, one of several policies in Yee’s bill, was ultimately overturned in court. ATTORNEY FEES: $388,400.00 CIVIL DIVISION EXPENSES: $6,117.09 SOLICITOR GENERAL’S OFFICE EXPENSES: $6,125.82 HOURS / SALARY ESTIMATE: 65.8 / $2,282.20
That’s on Republican legislators, who either don’t accept that they can’t regulate abortion to the degree they seek, or worse, said Jodi Liggett, vice president of public affairs with Planned Parenthood of Arizona.
“The less charitable view is that they understand perfectly that these are unconstitutional bills, they’re being advised that, and candidly, it’s a form of harassment,” Liggett said. “To make us go down there, spend money on lobbyists trying to stop things and then spend money on attorneys trying to stop them in court. So I think there’s a bit of burnishing their cred with the Center for Arizona Policy, or just as ‘pro-life’ legislators.”
The Center for Arizona Policy is often blamed by anti-abortion foes as the impetus for legislation targeting abortion access in the state. The center has made a name for itself as a conservative, evangelical policy group in Arizona by supporting anti-abortion candidates in elections and pushing Republican lawmakers to sponsor and vote for measures to restrict access to abortions in the state.
Center for Arizona Policy’s website boasts of its many legislative achievements, while also hinting at the repercussions of their efforts – an asterisk next to bills the organization helped pass that were later struck down in court. When Arizona loses those legal battles, taxpayers foot the bill for causes championed by the Center for Arizona Policy and its influential president, Cathi Herrod.
Out of six lawsuits brought against the state over Center for Arizona Policy-backed bills since 2009, the state has successfully defended two laws: A 2009 law requiring minors to get notarized parental consent for an abortion, and a 2011 law banning abortions sought for race-based purposes.
Herrod said 2009 is the place to start. That’s when Democratic Gov. Janet Napolitano was replaced by Republican Gov. Jan Brewer, a conservative friendlier to Herrod’s cause and thus when Herrod began tracking policies her organization has helped shepherd through the Legislature.
Herrod said the number of policies still in effect today far outweigh the losses in court. Thirty-seven “pro-life” policies are still on the books, ranging from a 2011 policy requiring women to receive an ultrasound before an abortion; a 2012 law requiring schools to push childbirth and adoption as preferred alternatives to abortion; and a 2016 policy prohibiting the research, experimentation or trafficking of fetuses.
“You have to first look at what is in effect. And then you need to look at what the court cases were,” Herrod said. “And the question is, why does the abortion industry oppose women being given information about abortion pill reversal? Why does the abortion industry file lawsuits on some of these bills?”
Abortion providers like Planned Parenthood, and Democratic legislators who’ve argued and voted against Center for Arizona Policy-supported bills, say lawsuits are filed because the policies are unconstitutional and harmful. Planned Parenthood and other organizations challenging the Legislature have indeed won more cases than they’ve lost since 2009, leaving Liggett of Planned Parenthood to question Herrod’s motives, and the motives of lawmakers who vote in Herrod’s favor.
“Are we really trying to create good public policy? Is this really about – in particular, is this really about women’s health and safety?” Liggett said. “Or is this just about making it as hard as possible (to have an abortion), which is actually harmful to women’s health and safety?”
For example, a 2012 bill designed to block clinics that provide abortions from receiving federal funds through Medicaid was flagged by House staff as problematic. House Rules Attorney Tim Fleming told the House Rules Committee that the measure, sponsored by then-GOP Rep. Justin Olson, may conflict with aspects of federal law.
Fleming told legislators he found similar measures, approved by other states that were then being litigated.
“Each of the statutes in each of those states were at least preliminarily enjoined,” he said, meaning a judge thought there was a good chance challenges to those laws would succeed. Fleming added that those cases had not yet been decided at the time.
[Story continues after graphic.]
- Planned Parenthood v. Betlach
- Planned Parenthood v. Humble
- Planned Parenthood v. Brnovich
A flurry of legislative activity in 2016 settled this case, which was spurred by Yee’s HB2036 – the same bill with the overturned 20-week abortion ban. In this case, Planned Parenthood challenged a policy requiring doctors to administer medication abortions using only the steps approved on U.S. Food and Drug Administration labels. A federal lawsuit blocked the policy in the 9th Circuit, while a separate lawsuit was filed against the policy in state court. While the law was hung up in court, Yee sought a legislative fix in 2016 that was spoiled when the FDA updated the label for medication abortion pills. Legislators repealed the law entirely later that year, rendering the cases moot, but leaving the state on the hook for legal fees. ATTORNEY FEES: $467,099* CIVIL DIVISION EXPENSES: $4,937.50 HOURS / SALARY ESTIMATE: 2,493.20 / $88,150.40* *Combined total from cases in state and federal courts.
Despite pleas and warning from obstetricians and gynecologists, Republican lawmakers still passed SB1318 in 2015. The bill required doctors to tell their patients that there was a chance medication abortions could be reversed in between doses. Women’s health providers said there was no scientific evidence to support that claim. Still, the bill became law, though lawmakers ultimately repealed it in 2016 when faced with a likely court loss. That still left state taxpayers on the hook for attorney’s fees. ATTORNEY FEES: $550,000* CIVIL DIVISION EXPENSES: $36,278.70 SALARIES BY THE HOUR: $25,958.60 *The state settled for less than the $612,218.78 it was ordered to pay.
Nonetheless, HB2800 was approved and a lawsuit was filed by Planned Parenthood. The law was overturned. And a judge ordered $388,400 be paid in attorneys’ fees, with the cost split evenly between the state and Maricopa County.
Liggett said it’s incumbent on legislators, particularly Republicans who promote themselves as fiscally conservative, to consider those costs when there are warnings the bills legislators sponsor and debate will have trouble in court. If not, they’re letting the Center for Arizona Policy use the state as a means to litigate their anti-abortion cause.
“A Republican legislator a long time ago used to talk about OPM – other people’s money. So if you can do this all day long, year in and year out, and spend taxpayer money – let’s remember, we’re talking about litigation costs. There’s also just cost of running legislation. There’s leg council, there’s staff. It’s not free. And when you have bills that you know early on that are not viable, that seems to me to be irresponsible,” Liggett said.
Among Arizona Democrats, Center for Arizona Policy takes a lot of the blame for pushing these bills and essentially having the state pay the cost of litigating abortion issues. But Senate Minority Leader Katie Hobbs said the buck stops with legislators, not Herrod.
“Herrod has a lot of clout, and she has a way to get lawmakers to do what she wants. But nobody has to do what she tells them to do,” said Hobbs, D-Phoenix.
Herrod said the Center for Arizona Policy, just like any other lobbying group, is well within the norm by pushing policy it favors at the Legislature. Contrary to the warning of other lobbyists, and at times the Legislature’s own attorneys, Herrod said her organization doesn’t push legislation if they don’t think it’s constitutional and believe it will be upheld in court.
Herrod pointed to HB2036, sponsored by then Rep. Kimberly Yee in 2012, which included a ban on abortions after 20 weeks. That policy was overturned in the 9th U.S. Circuit Court of Appeals. But at the time Yee, a Phoenix Republican, sponsored the bill and the center helped guide it through the Legislature, Herrod said there were “maybe nine or 10 states” that had a 20-week ban on the books.
“So we approached this certainly with what we believe – what problems are being solved by a pro-life bill, what the needs are, what we believe will be upheld in court, and what we believe is constitutional,” she said.
In other instances, court battles are simply part of the legislative process, Herrod said. The parental consent law, passed in 2009, “took, I think, three different tries, if not four tries, to get the parental consent requirement in Arizona upheld and enforced in law,” she said.
As for the losses in court, Center for Arizona Policy’s wins make the cost of litigation worth it, Herrod said.
“We would say that our batting average is something like 37 to 4. And I’ll take that average any day,” she said.
Republican legislators who back Herrod’s bills often feel the same way. None of the sponsors of bills that led to legal losses for the state returned calls for comment. But Sen. Debbie Lesko, who as a representative sponsored the bill to block abortion providers from tax credit benefits in 2011, had her reason for pushing the bill cited in an order preliminarily blocking the law.
“I believe God has put me here for a reason,” Lesko, a Peoria Republican, had said during a committee hearing. “And I often ask Him, ‘What is that reason?’ and I ask for a purpose. (I ask Him to) ‘Please guide me and tell me what you want me to do.’ And I truly believe that one of the purposes that I have been put in this position is to protect the lives of innocent children.”
Court puts new abortion law on hold
A federal judge late Tuesday blocked Arizona from making criminals out of doctors who perform abortions knowing the woman’s reason is a genetic fetal defect.
In a 30-page ruling, Judge Douglas Rayes said the law imposes a undue burden on women. And he said that outweighs any interest the state claims in promoting life.
In fact, Rayes slapped the state for making such a claim in this case.
“The mechanism Arizona has chosen is not designed to encourage women to choose childbirth,” the judge wrote. “It is designed to thwart them from making any other choice.”
Tuesday’s order is not the last word. It still gives attorneys for the state a chance to argue, after a full-blown trial, that the measure is constitutional.
But in issuing the injunction, Rayes said he already has concluded that the challengers are likely to succeed in convincing him that the law cannot stand.
The measure, approved earlier this year by the Republican-controlled legislature, makes it a crime for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure solely is a genetic abnormality. The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.
Rayes said there are several flaws with the statute.
It starts with the definition of a “genetic abnormality” which the judge called “squishy.”
More problematic, the judge said, is that it makes it a crime for doctors to perform an abortion if the woman’s sole reason is that genetic defect.
“At what point can a doctor be deemed to ‘know’ or ‘believe’ what is in the mind of a patient?” Rayes wrote. And then there’s the question of what happens if that defect is just one reason a woman seeks an abortion.
“The decision to terminate a pregnancy is a complex one, and often is motivated by a variety of consideration, some of which are inextricably intertwined with the detection of a fetal genetic abnormality,” he said.
“For example, patient sometimes report that they are terminating a pregnancy because they lack the financial, emotional, family, or community support to raise a child with special and sometimes challenging needs,” Rayes continued. “If a doctor accepts money to finance such an abortion … can that doctor face felony prosecution or a civil lawsuit?”
Rayes acknowledged that, strictly speaking, the law is not a ban on such procedures. That’s because a woman, denied an abortion after telling a doctor her reason, is free to seek out another provider and keep her reason secret, or lie about it.
But the judge said the Constitution prohibits states from imposing an “undue burden on the woman’s ultimate choice.”
In this case, he said, doctors are required to inform a woman, ahead of any procedure, that they cannot perform it if the reason is a fetal genetic abnormality. And that, Rayes said, will make it less likely that a woman who wants to terminate her pregnancy knows that she has the right to seek out another medical provider.
“Very few Arizona providers offer abortion at the later stages of pregnancy, when certain fetal conditions are likely to be detected,” Rayes said.
“Women are already choosing from a more limited pool of providers,” he continued, saying that the law “will only make that pool smaller.”
“Moreover, such women are racing against a clock because Arizona law prohibits post-viability abortions and viability usually occurs between 23 and 24 weeks of gestation,” the judge said. “Fetal genetic abnormalities might not be diagnosed until a woman nears that mark, and the time it takes her to do the sort of doctor shopping suggested by (the state) could push her past viability.”
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, criticized the decision putting the law on hold.
“Meanwhile, preborn babies with genetic conditions like Down syndrome will lack the protection needed against discriminatory abortions,” she said in a prepared statement.
Democrats fail to get vote on right to contraceptives
Ducey asks Supreme Court to overturn Roe v. Wade
Gov. Doug Ducey wants the U.S. Supreme Court to overturn it’s historic decision in Roe v. Wade and leave the question of whether to allow abortion in Arizona to state lawmakers — and to him as an unapologetic foe of the practice.
Ducey is among 12 governors who filed a brief Thursday with the nation’s high court in support of a Mississippi law that bans terminating a pregnancy after the 15th week. Enforcement of that law has been blocked by the 5th Circuit Court of Appeals.
But the brief goes beyond arguments by Mississippi that the law is a permissible regulation of abortion as it does not ban the practice outright.
Instead, Ducey and his fellow governors want the justices to revisit the original 1973 decision and subsequent rulings that say the government has no authority to decide a woman’s decision about whether to keep or terminate a fetus before viability. That, in turn, would leave the issue to the legislatures and governors in each of the states.
Potentially more significant, it might not even require a public debate or vote in Arizona on the question of the rights of a woman to an abortion.
That’s because legislators never repealed many of the laws that predate Roe v. Wade, meaning they remain on the books, albeit are currently unenforceable. That leaves the question of whether they would automatically take effect again if Roe is overturned.
If nothing else, it would again make the question of abortion rights front and center in future statewide and legislative political races, something that until now hasn’t been necessary given the Supreme Court ruling.
But that, according to the governors, is exactly what they want.
“The Constitution preserves the rights of the states by specifically enumerating the authority granted to the federal government,” Ducey said in a prepared statement explaining his decision to seek to overturn Roe. “Unfortunately, almost 50 years ago, the U.S. Supreme Court decided to ignore the Constitution and created policy which has led to the over-politicization of this issue for decades.”
And the governor made it clear where his sentiments lie if Arizona gets to decide whether abortion remains legal here.
“Every single life has immeasurable value,” he said.
“That includes children who are preborn,” Ducey continued. “And I believe it’s each state’s responsibility to protect them.”
But Rep. Athena Salman, D-Tempe, called Ducey’s legal efforts “patronizing, sexist and extreme.”
“Here we have yet another man who will never become pregnant, who will never be faced with a choice of whether or not they need to get an abortion, abusing the position of his elected office to deny this fundamental piece of health care to the millions upon millions of people who will need it at some point in their lives,” she said, citing figures that one in four women will terminate a pregnancy. And Salman said this is a fundamental — and national — constitutional right, not something that should be decided on a state-by-state basis.
“It is fundamentally wrong for your zip code to determine whether or not you can have access to a safe, regulated form of health care and abortion,” she said.
Whitney Walker, a vice president of Planned Parenthood Arizona, questioned Ducey’s desire to get involved in the issue.
“Instead of focusing on the rising COVID-19 case numbers or educating the public to get vaccinated, Gov. Ducey is concerned with denying access to essential health care to the state’s residents, all in the middle of a global pandemic,” she said in a prepared statement. “Ducey needs to stop playing politics and start doing what is right for Arizona.”
In blocking the Mississippi law, the 5th Circuit said Roe held that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
The judges said that was reaffirmed in a 1992 case, saying “the state’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”
Ducey and the other governors want the current crop of Supreme Court justices to conclude that these decisions were an illegal infringement on state sovereignty. That, they said, would let the states “serve as laboratories of democracy for establishing and implementing suitable abortion regulations based on the latest scientific knowledge.”
But Ducey, in his six years as governor, has never said he wants some sort of examination of when abortions should be legal.
Instead, citing his pro-life stance, he has signed every bill restricting abortion that has reached his desk. And a panel of appointees hand-picked by the governor even went so far as blocking state employees from making payroll deductions to Planned Parenthood yet allowing donations to Alliance Defending Freedom, an openly anti-abortion public interest law firm that has gone to court to defend legislation to restrict abortion rights.
In their legal brief, the governors said the question of whether to allow or outlaw abortion is one for the states to decide.
“Once voters cast their ballots, it is up to a state legislature to decide how the state will regulation abortion,” Ducey and his colleagues told the court.
“And if voters do not like what a legislature does, then they have democracy’s ultimate check: the ballot box,” they continued. “There is nothing wrong with giving this issue back to the people.”
What that also would do is shift the debate stage.
“No longer would the issue dominate presidential campaigns,” the governors said. Instead, the focus would shift to the state level which they said “better allows those differing voices to be heard and to shape policy.”
For the most part, though, the makeup of the Arizona Legislature has tilted toward adopting more and more restrictions in a bid to get around — if not directly challenge — Roe v. Wade.
For example, a 2012 law, signed by Ducey predecessor Jan Brewer, sought to ban abortions at 20 weeks. A federal appeals court struck it down as conflicting with Roe and the constitutional right of women to terminate a fetus that is not yet viable outside the womb.
Just this year, the legislature approved and Ducey signed a measure to make it a crime to abort a child because of a fetal genetic defect despite claims by foes that interferes with the rights of women to make decisions before the point of viability. That same law also:
– Allows the husband of a woman who seeks such an abortion, or the woman’s parents if she is younger than 18, to sue on behalf of the unborn child.
– Outlaws the ability of women to get otherwise-legal drugs to perform a medical abortion through the mail or other delivery services.
– Declares that the laws of Arizona must be interpreted to give an unborn child the same rights, privileges and immunities available to anyone else.
That law takes effect at the end of September. Planned Parenthood said no decision has been made whether to challenge it in court as violating the rights set forth in Roe and the subsequent court rulings.
Ducey signs abortion, transgender bills
Gov. Doug Ducey today signed legislation to outlaw virtually all abortions after 15 weeks, preclude transgender girls from participating in women’s sports, and make it illegal for doctors to perform...
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Ducey signs controversial abortion bill
Rejecting fears by doctors they could get arrested, Gov. Doug Ducey on Tuesday signed a new law restricting who can get an abortion.
The measure, which takes effect later this year, makes it a felony to terminate a pregnancy if the woman is seeking the procedure because of a fetal genetic defect. The verbiage is so broad that it also could result in similar charges — and potentially a year in state prison — for nurses and others who assist, potentially including clerical staff.
In signing the bill, Arizona becomes one of only a handful of states with such a restriction.
It also potentially opens the state up to litigation. While a federal appeals court has upheld a similar law in Ohio, the U.S. Supreme Court has never decided whether this kind of blanket rule runs afoul of its precedents limiting the right of states to interfere with a woman’s decision to terminate a pregnancy prior to a fetus becoming viable.
Ducey’s decision comes less than a week after a coalition of medical groups asked him to veto it because it “severely compromises the physician-patient relationship.”
“The bill will discourage communication and affect care between physicians and patients by creating a fear of criminal prosecution,” wrote Dr. Miriam Anand, president of the Arizona Medical Association. She said that relationship is based on open and honest communication which both serves the health and safety of the patient and ensures the doctor can make the most informed medical judgment.
“This should not be compromised,” Anand wrote on behalf of not only her organization but also the Arizona section of American College of Obstetricians and Gynecologists, the Arizona Osteopathic Medical Association and the Arizona Academy of Family Physicians.
Federal agency takes abortion stance, says life begins at conception
The U.S. Department of Health and Human Services has changed key language in its newly released draft strategic plan that puts the department in the center of the heated debate...
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Fetal heartbeat bill stalls in Senate
Medical Concept: Black Chalkboard with Abortion. Medical Concept – Abortion Handwritten on Black Chalkboard. Top View Composition with Chalkboard and Red Stethoscope. 3D Rendering. Arizona will...
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Fund 211 hotline, allow access to people who need it
The 211 statewide hotline connects people to local resources such as shelters, food banks, health care, and finances. It’s an essential thread in the fabric of providing Arizonans with access to resources in times of great need.
In 2008, after the economic crash, 211 lost the majority of its funding, drastically reducing the quality and ability to provide services. Funding for the telephone-based state referral has been in the midst of a debate as special interest groups are conjuring up ways to exclude referrals to organizations that provide a variety of health care services, the crux of it being referrals to abortion services.
Amidst the COVID-19 crisis, access to birth control and abortion services is an even more pressing and time sensitive issue. In times like these, our local representatives need to stop wasting time debating how to circumvent access to these vital resources. I’m continuously confused as to why we allow faith-based organizations to dictate allocation of funds, and subsequently access to resources. Our Constitution calls for a separation of church and state. Why do we allow these organizations to make health care decisions for people without their consent by omitting referrals to care?
It is unethical to allow organizations to limit people’s access to information. As a future health care provider, I am continuously taught the importance of providing people with comprehensive and appropriate information so they can make decisions about their health and well-being for themselves. For a state-funded resource to limit people’s autonomy, due to the desire of lobbyists to impose their beliefs on people in a time of vulnerability and need is abhorrent. We must allow people to get the information they need to make the most appropriate decisions for themselves. We must also stop discussions debating the merits of abortion. If pregnant people do not want an abortion, they do not need to get one. We cannot tell people what to do with their bodies and lives, especially such life-changing decisions such as growing a family. Those are not decisions for us to make.
Furthermore, I’m confused as to why our lawmakers even entertain the Center for Arizona Policy, an Evangelical Christian group, in bullying decision-makers into reducing people’s access to information. Abortions are health care and it is absurd that we are still having debates about taxpayer dollars going toward necessary health care. It’s worth noting that providers who perform abortions, oftentimes provide much more care than simply abortions. They provide birth control, health care services related to reproductive health such as ultrasounds, breast exams, HIV and STI testing, PAPs, and well-woman exams, which are preventative in nature, and an important part of general wellness. Currently, 211 cannot make a referral to any health care provider if even just one of their services is abortion. This means if a woman needs birth control or an STI test, Planned Parenthood cannot be a referral. What if Planned Parenthood is their only local resource for care? With laws written as they currently are, this individual would not be given information for the health care services they need.
We are causing more harm than good here. We are causing further harm to people in their most vulnerable time: when they are in need. We are causing harm primarily to poor women, women of color, and disabled women and placing an even heavier burden upon them by making them navigate complex systems without assistance or advocacy. The politicians supporting these measures are the ones we need to vote out of office. It is exhausting that politicians and special interest groups continue to dictate the type of resources we get access to. My body, my choice – with everything, not just access to abortion, but especially access to abortion!
We must stop wasting time. Fund 211 well and keep it well-funded. Allow people the opportunity to get access to the information they need. Trust people to make the best decision for themselves with the information they have. If you limit their information, they cannot make informed decisions, and this directly causes harm.
Politicians supporting the measure to limit people’s access to information include:
- Gov. Doug Ducey,
- Sen. Rick Gray, R-Sun City
- Rep. Michelle Udall, R-Mesa
Adriana Berusch Gerardino is a fourth year naturopathic medical student in Tempe.
GOP majority blocks efforts to repeal territorial abortion ban
A Republican in the state House of Representatives attempted to put up a bill for a vote Wednesday that would repeal the 1864 state ban on abortion procedures, leading to chaos on the House floor after the chamber went into recess instead of voting on the measure.
Rep. Matt Gress, R-Phoenix, made the motion for the chamber to vote to suspend its rules and place HB 2677 up for a vote. The bill, sponsored by Rep. Stephanie Stahl Hamilton, D-Tucson, never received a committee hearing during the session, requiring a motion to suspend House rules and have the bill skip committee hearings.
His motion comes after the Arizona Supreme Court upheld the pre-statehood ban on nearly all abortions – a decision that some Republicans including Gress say is a step too far.
“I think that we have people on our side of the aisle that feel very strongly that women should not be condemned to carry out a pregnancy to term, especially victims of rape or incest,” Gress said. “The territorial law is a law from the 1800s. We need a law for the 2020s.”
Instead of considering Gress’ motion, Republicans motioned to recess. That motion passed and several Democrats started shouting “shame” and “save women’s lives” repeatably at Gress and other Republicans.
Democrats also interrupted Gress’ press gaggle with reporters after the House went into recess, calling him a “liar” who has sponsored bills that would establish fetal personhood. They also noted he voted in support of the recess motion.
“It’s all performative,” said Rep. Nancy Guttierez, D-Tucson. “Matt Gress is running scared because he knows if this ban is in place, he has a hard time winning his election.”
Gress represents Legislative District 4, which covers North Phoenix, Scottsdale and Paradise Valley. The district is also represented by Rep. Laura Terech, D-Scottsdale, and Christine Marsh, D-Phoenix, and is one of the Arizona Independent Redistricting Commission’s highly competitive districts.
Gress said that he never sponsored legislation that specifically codified a fetus as a person. Last session, he sponsored HB 2417, which would have allowed a pregnant woman to qualify as “two persons” and drive in a HOV lane without carrying two or more passengers.
He also sponsored HB2502 in 2023, which would have allowed a court to retroactively impose child support payments to the date of when a pregnancy was positively confirmed by a licensed health care professional.
That bill was vetoed by Gov. Katie Hobbs last year and she wrote in her veto letter that the measure is “yet another attempt by Representative Gress to strip Arizonans of the freedom to control their own body.”
After the House returned from recess, Stahl Hamilton attempted again to bring her bill up for a vote. A roll call vote was held and every Republican except for Gress voted against Democrats to instead adjourn for the day.
Hobbs said in a statement that Wednesday’s legislative action was “unconscionable” from an “extremist” Republican majority.
“As they have time and again, radical legislators protected a Civil War-era total abortion ban that jails doctors, strips women of our bodily autonomy and puts our lives at risk,” Hobbs said.
The motion to adjourn passed 30-29, with Democrats missing one member of their caucus after former state Rep. Marcelino Quiñonez resigned on April 4.
“For me, this is all about policy and it’s all about the people. For some folks, they don’t see it that way. We know that this is a wedge issue for a lot of Republicans,” Stahl Hamilton said.
Other Republicans said they were disappointed by the demonstration that Democrats put on before the recess. Rep. Teresa Martinez, R-Casa Grande, said it was “childish” behavior that prevented productive conversations about the issue.
“Obviously we cannot have those conversations when the Democrats are screaming at us and engaging in extremist and insurrectionist behavior on the House floor,” Martinez said.
Speaker Ben Toma, R-Peoria, urged patience after House adjourned and said he didn’t approve of “childish behavior” and “shenanigans” that he saw. He said he didn’t believe Democrats’ actions were only about the 1864 law and said “nothing happens in a vacuum” at the legislature, referring to efforts to get an initiative on the November ballot that would establish abortion as a right to Arizonans that Toma criticized as allowing abortions up until birth.
“There is absolutely no reason for us to rush,” Toma said. “This law, should it pass, will not become effective any sooner if we pass it today or if we pass it before the end of the session.”
Laws signed by the governor must wait 90 days after the legislative session ends before taking effect unless a law is signed with an emergency clause, which the abortion ban repeal is unlikely to get.
Gress said he believes he has enough votes in the House and Senate to repeal the 1864 law. Each chamber has a one-seat Republican majority. Toma wouldn’t say how many Republicans have come to him asking to put the measure up for a vote.
Rep. David Cook, R-Globe, said he would support the repeal bill. Cook was the last member to vote if the House should adjourn or bring Stahl Hamilton’s measure up for a vote and was seen speaking to several members. He ended up voting with most of his colleagues to adjourn.
Cook voted for the 2022 15-week abortion ban bill that allowed the territorial ban to be in effect but said the Supreme Court’s abortion ruling has since changed the issue for state lawmakers across the country.
“In the time that the territorial law was done, in my business, we used to hang cattle thieves,” Cook said. “We don’t do that anymore. We’ve progressed as a state. There are a lot of things that need to be cleaned up and this is one of them.”
Sen. Anna Hernandez, D-Phoenix, said she tried to bring forward a similar motion to the House but Republicans made a motion to adjourn before she could offer it, leading to several objections from Democratic Senators.
“We’re not going to do what the House did today,” said Sen. T.J. Shope, R-Coolidge.
Arizona Capitol Times Legislative Reporter Hannah Elsmore contributed reporting to this article
Groups oppose bid to enforce abortion law
Abortion rights advocates are urging U.S. Supreme Court Justice Elena Kagan to spurn a bid by Attorney General Mark Brnovich to let Arizona immediately begin enforcing a new restriction on the procedure despite a federal judge’s ruling blocking the move.
In new court filings December 21, Jessica Sklarsky representing the Center for Reproductive Rights, told Kagan that there is no basis for the claim by the attorney general that Arizona will suffer “irreparable harm” if it cannot make it a crime to block doctors from performing abortions in cases where the woman’s reason is a fetal genetic defect. She pointed out that such procedures have been legal – and practiced – since the U.S. Supreme Court legalized abortion in 1973.
Sklarsky also dismissed claims by Brnovich that a federal appeals court here would overrule a decision by a federal court in Phoenix enjoining enforcement of the law. She said the court found multiple problems that suggest the law is unconstitutional.
“It concluded that plaintiffs were likely to succeed both because the law imposes an undue burden in violation of substantive due process, and because its ill-defined and internally inconsistent prohibitions are unconstitutionally vague,” Sklarsky said.
Her pleadings are to Kagan who handles emergency appeals from the 9th Circuit Court of Appeals, which last month denied the request by Brnovich to immediately stay the ruling by U.S. District Court Judge Douglas Rayes putting the law on hold. It is now up to Kagan to decide the issue herself or refer it to the full court.
There is no indication when any of that would occur.
Hanging in the balance is a statute, approved earlier this year by the Republican-controlled Legislature, which makes it a felony for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure is solely because of a genetic abnormality. The law carries a penalty of up to a year in prison for doctors – there is no penalty for the woman.
The law also creates a more serious crime for any person, including but not limited to doctors, to “solicit or accept monies to finance … an abortion because of a genetic abnormality.” That carries a presumptive prison term of 3.5 years.
And it also creates liability on any medical or mental health provider who knowingly does not report known violations of the law to police.
Sklarsky noted that, in blocking enforcement, Rayes said that even if the hurdles of the law do not discourage women from seeking to terminate their pregnancy, it will still be a “vexing task” to “find another provider who is both eligible and willing to perform the procedure.” And Rayes said that because a diagnosis of fetal defects often cannot be made until later in pregnancy, patients often “are racing against a clock because Arizona law prohibits post-viability abortions.”
In seeking an injunction from Kagan, one of the things Brnovich needs to prove is that the failure of Arizona to enforce the law will cause “irreparable harm.” Sklarsky told the justice he hasn’t met that burden.
“A state does not automatically face irreparable harm when enjoined from enforcing an unconstitutional law because seeking to enforce an unconstitutional law is not a valid exercise of state power,” she wrote. “Furthermore, Arizona offers no evidence that the safety and health of the people will be threatened if the status quo is preserved while the court of appeals considers the merits of (Brnovich’s) preliminary injunction appeal.”
Sklarsky also brushed aside the attorney general’s claim that the law is necessary to prevent illegal discrimination against the disabled because of genetic defects, an argument he said extends to those still in the womb.
“Arizona remains free to send an unambiguous message about the equal dignity and value of people born with genetic abnormalities through other means,” she said. “But it may not further its interests by erecting a substantial obstacle in the paths of women who have chosen to terminate their pre-viability pregnancies.”
Sklarsky also said Arizona may enact laws to promote childbirth over abortion.
“But such laws must be designed to encourage women to choose childbirth and not to thwart them from making any other choice.”
Brnovich’s petition comes as the Supreme Court is weighing how far states can go to limit – or even ban – abortions. The justices are weighing whether to uphold a Mississippi law that would outlaw all abortions after 15 weeks, long before viability.
The court also could use the case to overturn the historic 1973 ruling of Roe v. Wade, which legalized abortion. That would leave it up to each state to set its own restrictions – or ban it outright.
Half of this year’s bills died unceremoniously
Covid and increased Capitol security aside, this January at the Legislature started like almost every one before it.
Lawmakers and their assistants scurried between the House and Senate, passing bill folders back and forth to collect signatures and promises to support legislation. Grand ideas to dramatically change state government, tiny technical corrections fixing apostrophe placement, bills that took up two sentences and bills that ran for hundreds of pages all landed in hoppers in the House and Senate, ending with a record 1,708 bills — and another 115 memorials and resolutions — ready for hearings.
Six weeks later, more than half of them are legally dead.
Some bills gain new life, others born with ‘strikers’
By Julia Shumway and Nathan Brown
By Julia Shumway and Nathan Brown
For every rule in the Legislature, there’s a maneuver to bend it. When it comes to session deadlines, strike-everything amendments buy another chance for seemingly dead bills.
This year, strikers on electronic cigarettes, unemployment and elections surfaced after deadlines for them to be heard in committee.
Vaping: For years, health care professionals and smoke shop owners have waged war over proposed regulations of vape products and electronic cigarettes. This year, Sen. Paul Boyer, R-Glendale, championed the health care side of things, with a now-dead bill that would have classified vaping products as tobacco and allowed municipalities to require tobacco retailers to obtain local licenses. Sen. Vince Leach, R-Tucson, sponsored the now-dead vaping industry bill that would have preempted local regulations. Senate Commerce Committee chair J.D. Mesnard, R-Chandler, held both bills but introduced a strike-everything amendment to SB1103 with parts of both bills. Mesnard won committee approval of SB1103, which he described as a way to buy the two camps more time to negotiate. Its future depends on whether Boyer and Leach can strike an agreement.
Unemployment insurance: Senate President Karen Fann, R-Prescott, used a strike-everything amendment to introduce a sweeping set of changes to the state’s unemployment system. Her SB1411 would raise the maximum weekly benefit to $320 from the current $240, reduce the number of eligible weeks to 20 from 26 and gradually increase unemployment taxes paid by employers. Fann said she has the votes to pass her bill.
Gambling: Gov. Doug Ducey and the state’s Native American tribes are negotiating a new gaming compact before the current one expires, and they reached agreement on allowing sports betting, as represented in a pair of mirror bills introduced by Sen. T.J. Shope, R-Coolidge, and Rep. Jeff Weninger, R-Chandler. But Sen. David Gowan, R-Sierra Vista, declined to hear Shope’s bill in the Appropriations Committee, which he chairs, and instead used a strike-everything amendment to attach the language to his own bill on historic horse racing. While the amended bill passed in committee, the tribes consider the historic horse racing component a “poison pill.” And it appears unlikely that Gowan’s bill could pass the full Senate.
Overturning elections: Gowan also drew national attention for a strike-everything amendment that would have asked voters to approve a constitutional amendment in 2022 to give the Legislature the sole authority to appoint presidential electors. After taking testimony near the end of a 12-hour hearing, Gowan announced that he would hold the resolution, saying he just wanted to start the conversation.
Checking Biden: Strike-everything amendments on both HB2310 and SB1119 would give the attorney general the power to review the constitutionality of federal executive orders. In 2014, Arizona voters approved an initiative that would prevent the state from using its resources to enforce unconstitutional federal laws. The process laid out in the two amended bills would allow the state to determine the constitutionality based on the attorney general’s opinion without waiting for court rulings. HB2310 passed the House on a 31-29 vote and SB1310 is awaiting a hearing in the Senate.
Conversion therapy: After fellow Republican Sen. Tyler Pace killed Leach’s bill prohibiting bans on conversion therapy or professional punishments for therapists who practice it, Leach reintroduced his bill as a strike-everything amendment to SB1325. The bill was on the February 23 Appropriations Committee agenda, but Gowan held it with no discussion, killing the bill for a second time.
Legislative consultant Beth Lewallen, who has closely tracked the Legislature for a decade, said this year’s dead bills mostly just show how a typical session goes.
“There were such a massive number of bills,” Lewallan said. “It’s normal for that many to die and I think it’s why we all take a deep breath and can’t wait when we get to crossover week.”
While some, such as a Senate resolution to hold Maricopa County’s supervisors in contempt, publicly failed to garner enough votes to pass, most of the bills that die in the House and Senate do so quietly. By the February 19 deadline to hear bills in committees in their chambers of origin, more than 950 measures were left to die.
Most were sponsored by Democrats, who struggle to have their ideas heard when Republicans still control both chambers. But some Republican bills also struggled to find a foothold.
Among the most notable were election bills, including ones sponsored by Sen. Kelly Townsend, R-Mesa, and Reps. Shawnna Bolick, R-Phoenix, and Kevin Payne, R-Peoria, that would have overturned the 2020 election results, given legislators the power to choose future electors and ended the Permanent Early Voting List, respectively.
Lewallen, who founded her own consulting firm, Italicized Consulting, works for many clients and spends a lot of time analyzing and tracking bills. She said she noticed a larger number of duplicate bills this year, which she speculated could be why there were so many that died.
It’s a case of different people sharing the same ideas, she said, and the short window of time to be heard in a committee causes them to die.
The Pandemic and Vaccines
The Covid pandemic upended the 2020 legislative session and dominated the entire interim period through the election cycle, but most Covid bills from Democratic sponsors are now dead, as are bills downplaying vaccines.
Outside of bill sponsored by Aaron Lieberman, D-Paradise Valley, to give grants to small businesses that were closed due to Covid, none of the dozens of Covid bills targeting unemployment, rental assistance, wage increases or residential eviction moratoriums from Democratic sponsors received a committee hearing.
It’s a fight Democrats have wanted since early in the pandemic, and a reason why they would have been in favor of a special session if the Republicans would have agreed to work with them on legislation. But while Democratic bills are not moving forward, efforts to raise the unemployment cap are not dead. Bipartisan efforts are making their way through each chamber.
Criticisms from the left that Gov. Doug Ducey was not effectively combating the virus or helping the people who needed it the most prompted bills like Paradise Valley Democrat Rep. Kelli Butler’s HB2788, which would increase the amount of paid sick leave for eligible employees in schools, and Glendale Democrat Sen. Martín Quezada’s SB1607, which would have prevented landlords from increasing the price tenants must pay for the duration of a state of emergency plus 30 days.
On the flipside, while Ducey and Arizona health officials push the safety of receiving one of the available vaccines that have been administered to at least 1 million people so far, at least two Republican lawmakers see the pandemic as a new reason to push an anti-vaccination agenda that has come up in consecutive sessions.
The vaccine is not mandatory, but state and federal leaders strongly encourage getting it. Sen. Nancy Barto, R-Phoenix, still wanted to remove a potential condition for employment to receive the Covid vaccine. Barto has a history of anti-vaccination efforts against the advice of health experts, but has yet to get any passed — though her bill to exempt dogs and cats from rabies vaccinations is moving in the Senate. Her Covid vaccine bill SB1648 never received a hearing in the Senate Commerce Committee.
An effort from Rep. John Fillmore, R-Apache Junction would have removed school immunization requirements, though it was not limited to the Covid vaccine.
Abortion
A bill from Rep. Walt Blackman, R-Snowflake, would have allowed women who get abortions and the doctors who perform them to be prosecuted for homicide, but it didn’t go anywhere after national attention at the start of session.
HB2650 would have given counties and the Attorney General’s Office the power to prosecute abortions while directing officials to enforce the law regardless of any federal laws or court rulings – such as the landmark 1973 case Roe v Wade – to the contrary. It contained an exemption for cases where the mother’s life was in danger, but not in cases when a pregnancy resulted from rape or incest. It was never assigned to a committee.
Other similar bills would legally classify abortion as homicide have been introduced in several other states over the past few years but have never gotten far. Blackman introduced another version of the bill, HB2878, a couple days before the House committee hearing deadline, which would allow abortion to be treated as homicide but doesn’t include the language directing the state to ignore federal courts that the other bill did. It died in the House Judiciary Committee without a hearing.
Rep. Athena Salman, D-Tempe, introduced a bill this year to repeal the unenforced pre-Roe v Wade abortion ban still on the books in Arizona. It was left to die after being referred to two committees – usually an ominous sign of a bill’s fate.
Responding to the Ballot
In clear response to the passage of 2020’s Proposition 208 (Invest in Education) Sen. Warren Petersen, R-Gilbert, introduced a ballot referral that would require voters to reauthorize tax increases every five years. Since Prop. 208 was a tax levy on Arizona’s highest income earners for the purposes of funding public education, it would go to the ballot again in 2024 – along with all other retroactive tax increases approved on the ballot. Petersen’s SCR1028 never received a hearing.
Rep. John Kavanagh, R-Fountain Hills, wanted to get a bill approved to crack down on marijuana impairments on the road – a provision that was not addressed when voters approved Proposition 207 (Smart and Safe Arizona), which legalized recreational marijuana for adults. Kavanagh’s HB2084 would set a blood level limit of two nanograms per milliliter to prove impairment, which experts say is not an accurate measure for marijuana intoxication. The bill died without a committee hearing.
Anti-Twitter
Conservatives have long complained that social media giants are biased against them, and two lawmakers who were particularly active in using social media to push conspiracy theories about the results of the 2020 election introduced bills to do something about it. Rep. Mark Finchem, R-Oro Valley, filed HB2180 in early January, a bill seeking to penalize social media companies that censor content for “politically biased reasons” by deeming them a “publisher,” not a “platform,” and holding them “liable for damages suffered by an online user because of the person’s actions.” And Townsend Introduced SB1428, which would have let anyone sue Twitter, Facebook and other social media sites if they delete or minimize the reach of posts.
Neither of their bills ever got a hearing. And neither of them are on Twitter anymore. Both deleted their accounts in late January although Finchem, like many other conservatives who decry Big Tech bias, is still active on Parler and Gab.
Freshman blues
Heading into the session, everyone expected a repeat of last year’s bitter fight over whether transgender girls should be allowed to participate in girls’ interscholastic sports. Similar battles are raging in legislatures across the country, as part of a nationwide push following a Connecticut lawsuit filed by female athletes who say they lost chances at athletic scholarships to two transgender girls who took top spots at track and field competitions.
Superintendent of Public Instruction Kathy Hoffman attempted to head off the potential bills with a prominent op-ed in the Arizona Republic arguing that students should be allowed to play on teams consistent with their gender identity — which, for transgender students, is different from their biological sex.
Sen. Wendy Rogers, R-Flagstaff, filed SB1637 early in the session to require only biological girls be permitted to play for girls’ teams, but Senate President Karen Fann never assigned it to a committee. Barto, the Phoenix Republican who led the charge last year, as well as ardent supporter Cathi Herrod, director of the influential social conservative organization Center for Arizona Policy, instead opted to hang back and wait for courts to rule on challenges to an Idaho law that would bar transgender girls from girls’ sports and a recent President Biden executive order that appears to require they be allowed.
SB1637 is just one of many Rogers bills that earned headlines in the national conservative media but won’t move forward. Fann also declined to assign her SCR1026, which would have removed Planned Parenthood founder and longtime Tucson resident Margaret Sanger from the Arizona Women’s Hall of Fame.
Senate Transportation and Technology Committee Chair David Livingston didn’t bite at Rogers’ pitch to rename State Route 260 the “Donald J. Trump Highway.” Barto didn’t hear Rogers’ SB1511, which would classify so-called “gender-affirming care” as criminal abuse, or her SB1383 to ban abortions after a physician can detect a heartbeat – typically six weeks into pregnancy or just two weeks after a woman misses her period.
Committee chairs also declined to hear Rogers’ bills creating harsher punishments for blocking roadways during protests and defacing monuments.
Lewallan, the legislative consultant, said she thought most of the bills from Rogers died because of her different approach than the typical freshman lawmaker.
“She tackled really big, high-profile issues her first year. There was no learning curve. A lot of people come in and especially into the Senate, and take a handful of issues and really kind of learn their way through the process, and she had a very different strategy than a lot of freshmen,” Lewallan said.
Hearing on fetal resuscitation bill used to demonstrate ‘our different world views’
Here’s what was missing in the ERA article – abortion
Ratifying the ERA would make it more difficult for anti-choice judges to uphold legal challenges to abortion rights by creating a precedent for equality between the sexes in the Constitution....
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Here’s why women need our bill
We talk often about how Arizona is one of the best states in the country to raise a family.
But is it the best state to be pregnant and form a family? As it turns out, our state is home to dozens of centers, clinics, and social services to support women and families facing unplanned pregnancy.
But what happens when those very women and families don’t know about these resources?
When Tina Stephens had an abortion 12 years ago, it was the last thing she wanted.
After finding out she was pregnant, she searched desperately online for resources and support to make it financially possible for her and her husband to bring another baby into their family.
But she couldn’t find what she needed. Today, she suffers from diagnosed PTSD.
Her abortion took a heavy toll on her mental and emotional health and her marriage. This month, she testified on behalf of SB1251, which she says may have kept her from choosing abortion had it passed 12 years ago.
Our bill (SB1251 and its House mirror bill HB2404) provides $1.5 million in funding over two years to establish the Family Health Pilot Program.
The goal of the program is to reach out to women and families facing an unplanned or challenging pregnancy and connect them with vital resources, including social services, medical information, emotional support, prenatal and parenting classes, and material aid ranging from car seats, cribs, diapers, and formula to GED prep and adoption referrals.
The goal of the program is to promote healthy pregnancy and family formation as an alternative to abortion.
Arizona would not be the first state to try this. A similar program has been running successfully in Texas for several years. They found that over 70% of women considering abortion did so because of financial concerns and lack of support.
When connected with resources through this outreach program, 49% of the women opted to choose life.
This bill would fund advertising necessary to reach these women and families, personnel (including registered nurses and care advocates), and administration and operations. The funding would be open to any organization that meets the qualifications to run such a program – with preference given to organizations based in Arizona.
“I really truly wish there was something like this bill available for me when I was scared and alone and didn’t know what to do,” said Tina Stephens during her moving testimony on February 2 before the Senate Appropriations Committee. “Information is the link that would have made a very big difference between my husband and I making the decision to abort our baby and not aborting our baby and I believe it truly will make a big difference for people today who are scared, confused, and alone and have no idea how to find resources that are available to them.”
We have a lot of problems to fix this session. There are a lot of bills we’re working on – important bills! But as legislators, we believe our job is first and foremost to protect the most vulnerable in our state. Preborn children and women and families in crisis are incredibly vulnerable.
Let’s not allow lives to be lost and women like Tina to struggle alone when help exists. Let’s save lives and prevent decades of suffering and regret. No woman should have to feel that abortion is her only option. The time to pass this bill is now.
Sen. Nancy Barto of north Phoenix represents Legislative District 15 and serves as chair of the Senate Health and Human Services Committee.
Rep. Michelle Udall of Mesa represents Legislative District 25 and serves as chair of the House Education Committee.
Herrod praises new law that threatens Planned Parenthood funding
Lawmakers approved legislation this year that threatens to pull funding from Planned Parenthood, and passed a law that requires physicians to do more to save fetuses that are “delivered alive.”...
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House approves bill to ban abortions for genetic reasons
After more than two hours of impassioned and at times acrimonious debate, the House voted 31-29 along party lines Thursday to advance a bill that would put several new restrictions on abortion in Arizona. SB1457 will, among other...
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House panel OKs abortion, transgender bills
House preliminarily approves pro-life proposal
The House gave preliminary approval today for a bill that sets aside $2.5 million to be awarded to an organization that would provide referral services for pregnant women and new mothers.
But that came over the objection of Democrats who pointed out the cash would be reserved only for groups that would counsel women against having an abortion.
The preliminary approval came after the Republican-controlled chamber rejected a proposal by Rep. Mitzi Epstein, D-Tempe, to instead give the cash to an existing volunteer group that staffs the state’s 2-1-1 referral service. She said that would enable the organization to operate on a 24/7 basis statewide – and would provide a broader menu of services.
That suggestion was panned by Rep. Michelle Udall, R-Mesa, who is pushing for the funding aimed at convincing women not to terminate their pregnancies. She said there is evidence that more women would choose to keep their babies if they could get help.
But Rep. Pamela Powers Hannley, D-Tucson, said there’s a better way to prevent abortions: prevent pregnancy in the first place.
“We should offer cheap or free contraception, the “morning after” pill and medically accurate sex education in the schools,” she told colleagues.
And Rep. Raquel Teran, D-Phoenix, said the legislation is crafted in a way to give the money to “crisis pregnancy centers” which are often run by churches and faith-based groups that have as their mission to deter women from terminating a pregnancy. She said the record from other states shows these organizations which uses “deceptive and manipulative practices.”
House Speaker Rusty Bowers, R-Mesa, did agree to scale back the program, providing the dollars for just one year instead of three. He also wants a report at the end of the year about what services actually were offered for the state dollars.
House Republicans accidentally distribute preliminary plans on abortion ban
A House GOP presentation accidentally sent to all House members Monday morning outlines a potential strategy of Republicans considering abortion ballot measures to conflict with the initiative being pushed by abortion access activists.
House Majority General Counsel Linley Wilson drafted a PowerPoint presentation for Republican House members following Rep. Matt Gress, R-Phoenix, attempting to put a bill that would repeal the 1864 abortion ban law up for a vote on April 10.
Wilson’s strategy lists two phases for House Republicans to consider. The first and phase would refer “reasonable protections” to voters while protecting the Legislature’s authority to “enact laws rationally related to promoting and preserving life and to protecting the health and safety of pregnant women” through a concurrent resolution.
The proposed language of the resolution doesn’t include a cutoff for when abortions would be permitted, but it does give the legislature the flexibility to enact laws on the issue.
Potential titles for the act Wilson suggested are “Protecting Pregnant Women and Safe Abortions Act,” “Arizona Abortion and Reproductive Care Act,” or “Arizona Abortion Protection Act.”
Wilson wrote in her presentation that there’s a need among Republicans to give voters something other than the “extreme abortion-on-demand” that the Arizona Abortion Access initiative. Her proposed language doesn’t create a right to abortion, instead it codifies “widely supported” protections and restrictions on abortion including outlawing partial-birth and discriminatory abortions.
The Arizona Abortion Access initiative is being pushed by organizations including the American Civil Liberties Union of Arizona, Planned Parenthood Advocates of Arizona and many Democratic lawmakers.
Organizers of the initiative say they have enough signatures to qualify for the November ballot. The proposed measure would establish abortion as a constitutional right, allowing abortions up until fetal viability, or about the 24th week of pregnancy.
The initiatives’ language also lists an exception to fetal viability if a health care professional determines an abortion is necessary to “protect the life or physical or mental health of the pregnant individual.”
Speaker of the House Ben Toma, R-Peoria, said on April 10 he didn’t think the language of the initiative would limit abortions up to 24 weeks.
“The reality of it is that it would allow abortion to the point of birth and even partial birth abortions, which is ridiculous and unconscionable, and it needs to be called out for what it is,” Toma said.
A second phase Republicans are considering is to send voters two other ballot measures that would conflict with the proposed Arizona Abortion Access initiative: A “15-week Reproductive Care and Abortion Act” and a “Heartbeat Protection Act.”
Wilson noted in her presentation that the 15-week ban act would work as a 14-week ban practically because it permits abortions up until the beginning of the 15th week of pregnancy.
“In reality, it’s a 14-week law disguised as a 15-week law,” Wilson wrote.
The proposed heartbeat protection act would allow abortions up until the sixth week of pregnancy begins, unless it is medically necessary to save the life of the woman, prevent serious risk of substantial and irreversible bodily harm, or if the fetus has a fatal abnormality.
Wilson wrote in her presentation that the second phase isn’t as preferable for Republicans because it transfers regulation of abortion from the Legislature to voters while setting an arbitrary number of weeks for abortion care in the state Constitution.
The goal would be to pull votes away from the Arizona Abortion Access initiative by strategically having voters read the Legislature’s referral first on their ballots while putting Democrats in a “defensive position to argue against partial birth abortions, discriminatory abortions, and other basic protection.”
“Changes narrative – Republicans have a plan! And it’s much more reasonable than the AAA Initiative,” Wilson wrote in her presentation.
Her email that was distributed to all House members notes that plans are preliminary, informing House Republicans not to share it outside of the GOP caucus.
House Minority Whip Rep. Nancy Gutierrez, D-Tucson, the Legislature needs to pass “a clean repeal of the cruel 1864 ban on abortion as soon as possible.”
“Republicans are playing politics with peoples’ lives and are desperate to muddy the water, confuse the issue, spread misinformation and change the narrative,” Gutierrez said in a written statement Monday. “In reality implementing this archaic ban was the result they argued for in court. We hope that enough members of their caucus will vote to save lives and pass a straight repeal.”
Toma said last week that the straight repeal that Gress and Democrats pushed for was something he couldn’t support personally.
“The document presents ideas drafted for internal discussion and consideration within the caucus. I’ve publicly stated that we are looking at options to address this subject, and this is simply part of that,” Toma said in a written statement on Wilson’s PowerPoint Monday.
House sends transgender sports, abortion bills to Ducey
Bills to ban many abortions and restrict transgender youth from getting reassignment surgery or playing on some sports teams are headed to Gov. Ducey’s desk. The House passed Senate Bill...
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Judge refuses to halt order on abortion ban
Judge weighs legality of new abortion law
The question of whether Arizona gets to enforce a new restriction on the right to abortion could turn on whether a federal judge considers it a ban or a restriction.
That distinction is critical as Judge Douglas Rayes considers a bid by abortion rights advocates to block a law set to take effect Sept. 29, which makes it a crime for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure solely is a genetic defect, even if the fetus is not viable outside the womb. The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.
During a hearing Wednesday, Rayes pointed out that Roe v. Wade, the historic 1973 ruling that legalized the right to abortion, does not say that women are entitled to terminate a pregnancy at any time or for any reason. And he said the high court has upheld restrictions on the procedure.
Emily Nestler, an attorney for the Center for Reproductive Rights, told the judge the state can impose certain restrictions on how and where the procedure is performed.
“But it cannot completely preclude the choice to terminate a pregnancy altogether,” she said.
“In this case, the law eliminates the right to an abortion for patients when they have a fetal diagnosis,” Nestler continued. “Under those circumstances there is no (state) interest that can outweigh the elimination of the right.”
But she told Rayes that even if he dubs the law a “regulation,” it is irrelevant. She said federal courts have struck down other abortion laws because they place an “undue burden” on women and place a “substantial obstacle to an abortion before the fetus attains viability.”
“The law … and all precedents for the past 50 years has made clear that up until the point of viability the woman has a right to terminate her pregnancy, and that the reason for that abortion is not relevant,” Nestler said.
Assistant Attorney General Michael Catlett is arguing that the state does have a legitimate interest in precluding such abortions. That is based on the contention that the law extends the protections against discriminating against the disabled to the unborn.
“The statute is designed to stopping physicians from performing abortions knowing that the sole reason is genetic abnormalities,” he said.
“That furthers the state interest in avoiding discrimination because the state has an interest in assisting people with disabilities succeed in life,” Catlett continued. “It can’t further its interest in avoiding discrimination any more than preventing people with disabilities from being terminated before they’re even born.”
But Rayes said that still leaves the question of whether the law actually — and absolutely — denies some women the right to an abortion, something that could make it an illegal ban.
He noted that the law requires a doctor to inform a patient that it is illegal for her to terminate a pregnancy if it is solely due to a fetal defect. The judge then grilled Catlett on whether a woman could get an abortion if she tells the doctor that is the reason she is there.
“From that doctor, she cannot,” Catlett said.
“The state’s desired outcome is that physicians in Arizona not perform discriminatory abortions, either because they’ve been expressly told by the patient that that is the reason for the abortion, is solely because of a genetic abnormality or there’s some other indication from which the doctor would be aware that that is the sole reason,” he said.
But what it does not preclude, Catlett conceded, is the woman going to another doctor — and simply refusing to disclose her reason for getting an abortion — or lying about it.
And that, he said, makes the law a regulation versus a prohibition.
Rayes was skeptical.
“How likely is it she would seek abortion from another doctor if she’s just been told by her current doctor that Arizona law prohibits abortions because of genetic abnormalities of a child?” he asked.
“I think if she wants to obtain the abortion, I think that she’s pretty likely to do that,” Catlett responded.
The judge, however, questioned whether a woman would have the knowledge to go look up the law and see that that is an option.
There are other issues that apparently bothered Rayes.
For example, he asked what would happen if a women told a doctor she wants to terminate a child with a genetic defect, not because she doesn’t want such a child but that she lacks the resources to provide the proper care. Catlett said an abortion could still be performed because the defect would be only part of the reason, with finances being the balance.
Rayes separately noted that Catlett’s claim that women can still get an abortion — meaning it is not a ban — could undermine the state’s argument that this is all about the real purpose of the law being to protect the disabled. He suggested if that is the goal, the only way to do that would be to ban such abortions outright or place substantial obstacles in the path of women seeking to terminate a pregnancy.
Catlett, however, sought to rephrase the law as one to keep doctors from intentionally or knowingly performing an abortion when the sole reason is a genetic defect.
“It sends a message to the medical community that the state believes strongly that physicians should not be performing intentionally discriminatory abortions,” he argued. “The state wants to eliminate or reduce the effects of discrimination by medical doctors when performing abortions, or for them pressuring women to perform abortions based on discriminatory reasons.”
Nestler, however, told the judge that the claim of pressuring holds no water. She said by the time a woman shows up at a doctor’s office she already has decided she wants an abortion.
But what the law does, Nestler said, is put doctors at risk of prison if they make the wrong decision or someone decides they knew or should have known the real reason a woman wants an abortion.
There are other issues for the judge to consider.
Rayes wanted to know whether relying on women to lie — or withhold information — to get an abortion interferes with their constitutional right of patients to communicate with the doctors. Catlett contends there is no such right.
The lawsuit also challenges a declaration in the statute that the laws of Arizona must be interpreted to give an unborn child the same rights, privileges and immunities available to anyone else. Catlett said it could be used to interpret other existing civil and criminal sections of law.
“If someone causes the death of an unborn child, the ‘personhood’ provision may now be able to result in compensation to the family of the unborn child for wrongful death,” he said.
But Catlett said that language law could not be used to bring manslaughter charges against a women whose negligence during pregnancy led to the death of the fetus.
The recent decision by the U.S. Supreme Court to allow enactment of a Texas law banning abortions at six weeks is unlikely to have any effect on whatever Rayes rules.
In that case, the high court sidestepped the issue, at least for the time being, because the Texas law does not create a new crime, as does the Arizona law, but instead gives individuals the right to file civil suits against anyone who aids in an abortion. And the justices never actually ruled on the merits of the underlying statute.
Lake flip-flops on ‘rare and legal’ abortion
For a few hours on October 4, it looked like Republican gubernatorial candidate Kari Lake was making a hard pivot to the center on abortion. But by the end of the day, the campaign had walked back comments in which Lake suggested that she wanted abortion to be “rare and legal.”
Still, the episode appeared to mark at least an attempt at moderation on abortion from Lake, who initially staked out a hard-right stance, but has lately taken to making vague statements about her views.
The day started off with Lake calling into Mike Broomhead’s morning show on KTAR. Broomhead is a popular Republican radio host who frequently lands interviews with conservative politicians like Lake who dismiss most mainstream media outlets.
During the segment, Lake said “it would be really wonderful if abortion was rare and legal, the way they said it before. Remember ‘rare, but safe; rare, but safe?’”
“I’m pro-life, I want to save as many lives as possible,” she added.
It sounded like a reference to a phrase used by former Democratic President Bill Clinton, who said that abortion should be “safe, legal and rare.”
In any case, the comments sounded like a pivot from her earlier stances.
During a January campaign rally, Lake described abortion as “killing … babies in the mother’s womb.” She wrote on Twitter that she wanted to make Arizona a “sanctuary state for the unborn;” indicated that she would sign a “heartbeat” bill banning abortion after cardiac activity is detected in a fetus; and praised Arizona’s territory-era abortion ban that prohibits all abortions except in medical emergencies.
But since the U.S. Supreme Court overturned Roe v. Wade and Lake won her primary, her statements have shifted. In a post-primary press conference, Lake said, “We have great laws on the books” pertaining to abortion but didn’t explain which of Arizona’s conflicting laws she likes.
A Pima County judge recently lifted an injunction against a century-old abortion ban that prohibits the procedure in all situations except medical emergencies. That’s led to confusion over whether the near-total ban, or a law signed by Gov. Doug Ducey earlier this year that bans abortions after 15 weeks, is legally in effect in the state.
At the same August 3 press conference, Lake claimed she was not going to “change” or “pivot.”
In the months since the primary, Lake hasn’t offered much more clarity on her stance and, like other Republican figures, has resorted to repeating that she’s “pro-life” when asked about the issue.
In an appearance on Fox News two weeks ago, a host asked her about the Pima County case. “I’m pro-life, I’ve never backed away from that and never will,” Lake said, not directly addressing the ruling.
Then, on October 4, Lake went on KTAR. As soon as the station posted audio of the interview online, news outlets started publishing stories about the apparent pivot.
But within hours, a campaign spokesman told the Associated Press that when Lake said she wanted abortion to be “rare and legal,” she didn’t actually mean she wants it to be legal.
Ross Trumble, the spokesman, reportedly told the AP that Lake only wants abortions to be rare and safe. He also indicated Lake wouldn’t have a problem with either of the laws Arizona has on the books – the territory-era near-total abortion ban, or a 15-week ban signed by Ducey – and said “safe but rare” scenario Lake wants to see could be achieved under either law.
There’s a certain logic to the “safe but rare” statement even if Lake wants to ban almost all abortions. Even the territory-era law includes exceptions for medical emergencies, so Lake could argue that she’s simply hoping the vanishingly small number of medically necessary abortions are done safely.
But the comments and quick backtracking only muddied the waters with respect to Lake’s actual stance, which wasn’t clear before. On KTAR, Lake said she’s confused by the situation, but didn’t offer clues as to what she, as the state’s highest executive, would do about it.
“We appear to have two laws and there seems to be some controversy on which law it’s going to be,” she said.
Law requiring questioning of women seeking abortion takes effect
Women seeking to terminate a pregnancy are now going to be confronted by some new questions about their decision. And the doctors who perform the procedure will have new reports...
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Legislature to debate bill to give $7.5M to nonprofit for pro-life counseling
Pro-choice protestors descended on Arizona’s Capitol Tuesday with a warning for lawmakers: Don’t be like Alabama, Georgia and other states where Republicans have backed bills intended to restrict or downright outlaw abortion.
Little did they know that in the halls of the Senate and House of Representatives, those lawmakers were crafting a bill to spend millions of dollars discouraging women from having abortions.
HB2579 and SB1547, mirror bills introduced Tuesday afternoon as senators and representatives prepared to begin debating and voting on an $11.8 billion budget, would allocate $7.5 million for pregnancy services that pro-choice advocates warn will offer a one-sided and biased take on how to handle their pregancies.
Backed by the anti-abortion lobbying group Center for Arizona Policy, the bill would create a “family health pilot program.” The Department of Health Services would distribute $2.5 million annually for the next three years to an unidentified nonprofit tasked with referring pregnant women to various health and social services.
A similar program in Texas identified social or economic challenges that women face when considering an abortion, said Cathi Herrod, president of the Center for Arizona Policy. Services will attempt to address those challenges.
“Nothing in the legislation requires a woman to carry her baby to term,” Herrod said.
But that’s explicitly what the bill encourages the pilot program to accomplish.
The services to be offered are intended to “support childbirth as an alternative to abortion,” the bill states.
And funding would be barred from use for abortion referral services, and could not be distributed to any organization that promotes or performs abortions. That means service providors that recieve the funding won’t be allowed to suggest abortion as a choice for women, said Jodi Liggett, vice president of public affairs at Planned Parenthood Arizona.
“I know all this sounds super, but unfortunately the majority of crisis pregnancy centers are not neutral in their approach to women,” she said. “They don’t present all the options.”
Funding for the pilot program would be a first in Arizona. Never before has the state dedicated general fund dollars for pregnancy services, according to former state health director Will Humble, with the exception of excess lottery revenues that – when available on occasion – have been distributed to family-planning service providers.
Rep. Athena Salman, D-Tempe, warned in a tweet she suspects the funds will be distributed to the Human Coalition, a Frisco, Texas-based non-profit that contracts with the Texas Health and Human Services Commission as a hotline for Alternatives to Abortion, the program on which Arizona’s pilot would be based.
The program, with an annual budget of tens of millions of dollars, offers services such as financial counseling and support groups for new parents, according to the Texas Tribune. It’s budget has grown annually since its inception in 2006, and has been praised for ensuring expectant mothers are financially prepared to care for children.
Herrod said such services could help pregnant women in Arizona .
“The intent of this bill is to help those women know what might be available to them, to help them should they choose to parent or choose to place their child for adoption,” she said.
During a Senate hearing Wednesday, Herrod said she didn’t know whether Texas’ program, or the proposed pilot in Arizona, would fund licensed health care facilities.
Liggett said the crisis pregnancy centers that are likely to receive funding through the program often provide nothing more than “medical window dressing.”
Sen. Lisa Otondo, D-Yuma, said she found it “quite ironic” that the Legislature didn’t know if the center in the pilot program would be licensed given that Arizona requires abortion providers to meet strict regulations.
“We’re going to be giving $7.5 million to something that we don’t even know if it’s a licensed health care facility, and I just wanted to make that point,” she said.
Herrod accused Planned Parenthood of presenting its own skewed version of options for parents. Planned Parenthood recieves government grants to help provide women’s health services, so the state would be justified in providing funding for services that present abortion alternatives, she added.
“The millions of dollars that go every year in government grants and funding to organizations like Planned Parenthood do not present the option really of carrying your child to term, either,” Herrod said.
If approved, the pilot program would also accomplish an end-run around efforts to refund Arizona 211, a hotline that refers people to services in their community.
Sen. Heather Carter, R-Cave Creek, sought to restore funding for the program with $1.5 million, but the bill was opposed by the Center for Arizona Policy over concerns that 211 could refer people to abortion clinics, the Arizona Mirror reported.
“Instead of funding the 2-1-1 system that has operated in Arizona since 1964 the Republican leadership is proposing budget bills, SB1547 and HB2759, to fund faux health centers,” Liggett said in a statement. “This bill is simply to appease the Center for Arizona Policy.”
Liggett told the Arizona Capitol Times Planned Parenthood provides pregnant women with all the available options, whereas crisis pregnancy centers that would be directed to be the hotline proposed by Herrod would leave women “steered toward one decision and one decisio alone.”
“I don’t know that the state should be picking winners and losers in this,” Liggett said.
Both bills were debated in House and Senate committees on Wednesday afternoon amid debate on an $11.8 billion spending plan. Senate President Karen Fann said the crisis pregnancy center language was considered as part of one of the main budget bills, but moved as a separate bill because legislators weren’t confident the budget would pass with it included.
SB1547 advanced in the Senate on a 6-4 vote, with Sen. Heather Carter, R-Cave Creek, joining the committee’s three Democrats to oppose the bill.
The House is scheduled to vote on HB2579 Wednesday evening.
Fann, R-Prescott, said Arizona didn’t take up a restrictive abortion bill like those passed by other Republican-dominated states because there were too many other things to do this session.
“Arizona has been probably one of the top pro-life states, up there with Texas,” Fann said. “We felt that this year we had a lot of other issues that needed to be addressed.”
Julia Shumway contributed to this report.
O’Halleran, Kelly must support born-alive protections
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Planned Parenthood ends legal challenge to abortion laws
Planned Parenthood has dropped its lawsuit challenging several abortion restrictions in Arizona, including the requirement for a 24-hour waiting period.
Without explanation, attorneys for the organization filed paperwork on November 3 telling U.S. District Court Judge Jennifer Zipps to dismiss the legal challenge.
The action means the state is free to continue enforcing not only the cooling off period but also other challenged restrictions, including who can perform what abortion-related services and prohibiting doctors from prescribing abortion medications by telemedicine.
No one from Planned Parenthood of Arizona, which promoted its filing of the 2019 lawsuit, would explain the decision to drop the case. Instead, Lola Bovell, a vice president of the organization, provided only a written statement about its ongoing concerns about the statutes in question.
“The status of this lawsuit does not change the fact that harmful laws like telemedicine bans, advance practice clinician bans, and mandatory waiting periods push abortion access out of reach for far too many people,” she said.
But Kevin Theriot, senior attorney for the Alliance Defending Freedom, which supported the restrictions, said the decision to drop the case comes in the wake of a changing legal environment.
In June, the U.S. Supreme Court did rule 5-4 that Louisiana has no legal right to prohibit doctors from terminating pregnancies unless they also have admitting privileges at nearby local hospitals.
That, however, really was a divided ruling, with Justice Stephen Breyer, writing for himself and three other justices that the requirement served no legitimate purpose in protecting the health of women. But Chief Justice John Roberts, in becoming the deciding vote, said he was not accepting those arguments but agreeing to the result based on different precedents.
And there’s something else.
That 5-4 ruling had Justice Ruth Bader Ginsburg in the majority. The late Ginsberg has been replaced by Amy Coney Barrett, who may prove more inclined to give states leeway in restricting the procedure.
In filing suit in federal court last year, attorneys for Planned Parenthood acknowledged that some of the laws at issue had been unsuccessfully challenged in the past. That includes that 24-hour waiting period, something that means a patient needs to make two trips to a clinic to terminate a pregnancy and a requirement for only licensed physicians to perform abortions.
In a 2011 ruling, for example, state Court of Appeals Judge Peter Swann rejected arguments that the restrictions impose undue restrictions on a woman’s constitutional right to choose. And he said that it is legally irrelevant that nurse practitioners, who are more available in rural areas than abortion-trained doctors, have a comparable safety record.
But Alice Clapman, a Planned Parenthood staff attorney, told Capitol Media Services at the time that she was counting on Judge Zipps to look not at the individual restrictions but the overall effect.
She cited a 2016 U.S. Supreme Court decision that said abortion restrictions need to be judged on whether they create an “undue burden” on women. What that means, she said, is that courts look at the statutes “to determine if the benefits of the restriction outweigh the burdens.”
“When states restrict abortion under the guise of women’s health they have to actually produce evidence that the restrictions enhance patient safety,” Clapman said. She said several of the challenged statutes are “sham public safety laws where there’s no evidence of benefit.”
But Cathi Herrod, whose Center for Arizona Policy has been behind crafting many of the statutes at issue, said when the lawsuit was filed that they all are justified and justifiable.
“Abortion is different than other medical procedures,” she told Capitol Media Services.
“It involves taking of a life, it involves risk to the woman’s health,” Herrod said. “So the state is completely justified in requiring only doctors perform abortions.”
She also defended the other challenged restrictions like a requirement for a personal consultation with a doctor 24 hours before terminating a pregnancy and forbidding doctors from prescribing the pills for a medication abortion unless there is a face-to-face visit.
“Women who are considering abortion deserve a chance to be one-on-one with a doctor before they take the abortion pill,” Herrod said.
Planned Parenthood said the laws have had an effect, including the closure of clinics in Yuma, Goodyear, Prescott Valley and Chandler. And the Flagstaff clinic can provide abortion services only one day a week.
Bryan Howard, who was president of Planned Parenthood Arizona until retiring at the end of last month, said the cumulative result is that the number of abortions performed dropped from between 9,000 and 10,000 a year a dozen years ago to fewer than 6,500 when the lawsuit was filed in 2019.
The lawsuit challenged three basic areas:
– “Physician-only” rules spelling out that abortions, both medical and surgical, as well as abortion-related procedures can be performed only by someone who is a doctor. Challengers pointed out that other medical professions, including nurse practitioners and physicians assistants, are legally entitled to perform “substantially identical procedures” involving women.
– Requiring women to visit a clinic and having an ultrasound at least 24 hours ahead of terminating a pregnancy for a consult with the physician. Foes said it presents a particular hardship to women from rural areas who have to travel to one of the metro areas either two days in a row or stay overnight.
– The fact that Arizona not only allows but encourages the use of telemedicine, allowing medical advice to be given and prescriptions to be written after a video conference with patients. But the lone exception is when an abortion is involved.
Planned Parenthood files suit to overturn AZ abortion laws
Claiming the rights of women are being violated, Planned Parenthood filed a broad-based legal attack on a host of Arizona laws and regulations governing abortion.
The lawsuit filed Thursday in federal court lists restrictions that have been imposed over multiple years by the Arizona Legislature on who can perform what abortion-related services, requiring women to make two trips to a clinic and forbidding doctors from prescribing abortion medications via telemedicine. Each of those, according to attorney Catalina Vergara, infringes on the constitutional right of women to terminate a pregnancy.
But the legal papers also ask a federal judge to look not just at the individual hurdles being placed in the path of women but what they say is the cumulative effect.
That has resulted in closure of Planned Parenthood clinics in Yuma, Goodyear, Prescott Valley and Chandler. And the Flagstaff clinic can provide abortion services only one day a week.
Bryan Howard, president of Planned Parenthood Arizona, said the result is borne out in the fact that the number of abortions performed has dropped from between 9,000 and 10,000 a year a dozen years ago to fewer than 6,500 now.
Some of these same laws have been challenged in the past. That includes the mandate for patients to visit a clinic at least 24 hours ahead of an abortion and a prohibition against anyone but a licensed physician from surgically terminating a pregnancy.
In a 2011 ruling, state appellate court Judge Peter Swann rejected arguments that the restrictions impose undue restrictions on a woman’s constitutional right to choose. And he said that it is legally irrelevant that nurse practitioners, who are more available in rural areas than abortion-trained doctors, have a comparable safety record.
But attorney Alice Clapman pointed out Thursday that the U.S. Supreme Court ruled in 2016 that abortion restrictions need to be judged on whether they create an “undue burden” on women. What that means, she said, is that courts look at the statutes “to determine if the benefits of the restriction outweigh the burdens.”
“When states restrict abortion under the guise of women’s health they have to actually produce evidence that the restrictions enhance patient safety,” Clapman said. She said several of the challenged statutes are “sham public safety laws where there’s no evidence of benefit.”
“The court is going to take a hard look at that evidence and really ask the state to justify these restrictions when they’re imposing a burden,” Clapman said.
But Cathi Herrod, whose Center for Arizona Policy has been behind crafting many of the statutes at issue, said they’re all justified and justifiable.
“Abortion is different than other medical procedures,” she told Capitol Media Services.
“It involves taking of a life, it involves risk to the woman’s health,” Herrod said. “So the state is completely justified in requiring only doctors perform abortions.”
She also defended the other challenged restrictions like a requirement for a personal consultation with a doctor 24 hours before terminating a pregnancy and forbidding doctors from prescribing the pills for a medication abortion unless there is a face-to-face visit.
“Women who are considering abortion deserve a chance to be one-on-one with a doctor before they take the abortion pill,” Herrod said.
The lawsuit surrounds three basic areas.
First are what are known as “physician-only” rules, spelling out that abortions, both medical and surgical, and abortion-related procedures can be performed only by someone who is a doctor.
Challengers point out that other medical professions, including nurse practitioners and physicians assistants, are legally entitled to perform “substantially identical procedures” involving women.
“They are only prohibited from doing so if the procedure is done to terminate a pregnancy,” the lawsuit states. “There is no medical or health-related reason for this distinction.”
One effect, according to the lawsuit, is that it keeps doctors busy doing chores that others can do, reducing the time they have available to actually perform abortions and causing delays for other patients.
Challengers also say there’s no medical reason to require women to visit a clinic and having an ultrasound at least 24 hours ahead of terminating a pregnancy for a consult with the physician.
They say it presents a particular hardship to women from rural areas who have to travel to one of the metro areas either two days in a row or stay overnight. And that, the lawsuit says, forces women to juggle work and school schedules, childcare needs and transportation availability.
And the lawsuit says Arizona not only allows but encourages the use of telemedicine, allowing medical advice to be given and prescriptions to be written after a video conference with patients. But the lone exception is when an abortion is involved.
Politically motivated laws hurt women’s health, violate rights
Despite legislative efforts to the contrary, abortion is a constitutionally guaranteed right – even in Arizona. Yet in our state, opponents of abortion have been doing an end-run around the Constitution by passing politically motivated laws that have made it difficult or even impossible for women to access safe, legal abortion. These TRAP (Targeted Regulation of Abortion Provider) laws not only violate people’s constitutional rights, they put their health at risk.
Their effect has been dramatic: a 40 percent decline in health centers that provide abortion, leaving 80 percent of Arizona counties with no access to such health centers, and women waiting weeks for services. These medically unnecessary laws have essentially stripped abortion access from many women living in Navajo, Hopi, Hualapai and Apache tribal jurisdictions, among others, and rural women in other regions of the state who already face many barriers to accessing essential health care. In fact, there is only one abortion provider in the Northern part of the state, and that health center only provides medication abortion one day per week. Some people must travel up to 700 miles round trip to access services. Think about the burden of traveling hundreds of miles to access a safe and legal medical procedure.
Everyone should be able to access reproductive health care – including abortion – regardless of their zip code or economic status. That’s why Planned Parenthood of Arizona is in court challenging three aspects of Arizona’s TRAP laws:
- An advanced practice clinician ban that prohibits qualified advanced practice clinicians, like nurse practitioners and physician assistants, from providing abortions and related care;
- A mandatory delay and two-trip requirement that imposes needless barriers to health care, including requiring patients to visit clinics in person, twice, with a 24-hour mandatory delay between visits that, in practice, delays women far longer; and
- A telemedicine ban that prevents access to early abortion services in remote areas.
Allowing qualified medical professionals to prescribe pills for abortion via telemedicine would expand access to women in underserved areas. Medication abortion has been available in the U.S. for many years and is extremely safe – the complication rate is less than one-half of one percent according to the Guttmacher Institute, whether provided in-person or by telemedicine. Telemedicine has been widely embraced in Arizona and across the nation as a high-quality health care option. In fact, the legislature has promoted the use of telemedicine to provide other health care services, including treatments for trauma, burns, cardiology, pulmonology, infectious diseases and neurologic diseases – even strokes. It’s politics that prevents advanced practice clinicians from providing abortion services.
The two-trip requirement is onerous and makes abortion unaffordable and inaccessible for too many Arizonans. Many of the people who seek abortion services are low-income and live at or below 150 percent of the federal poverty level. Low-income women face the most difficulty in paying for travel costs associated with two visits to a health center, rearranging inflexible work schedules at low-wage jobs, scheduling and paying for childcare and paying for abortion care.
The bottom line: There is no medical basis for these restrictions; they are designed to prevent people from accessing safe, legal abortion. It is the height of hypocrisy to pass these abortion restrictions as medical policies when they are in fact political attacks that endanger patients’ health.
Using politically motivated laws driven by uninformed opinions to regulate abortion providers hurts women’s health and decimates women’s rights. As a trusted, nonprofit health care provider, Planned Parenthood will not rest until every Arizonan has access to the full-range of reproductive health care services, including abortion. It’s time to take the politics and politicians out of women’s personal health decisions. Planned Parenthood of Arizona will continue to advocate for everyone’s health and rights, no matter what.
Bryan Howard is president and CEO of Planned Parenthood of Arizona.
Politically targeted justices limited in defending themselves
At the state’s annual judicial conference last June, an ethics director, a performance review commissioner and a political consultant advised judges to prepare to form campaign committees in 2024.
The warning, which came after three Superior Court judges were not retained by voters and a Supreme Court justice very narrowly stayed on the bench in 2022, was brushed off by some as an anomaly.
But others feared a coming wave.
“There were mixed feelings among the crowd,” April Elliot, executive director of the Arizona Commission on Judicial Conduct and staff director for the Judicial Ethics Advisory Committee, said.
As rising political tensions spilled in and out of the judiciary, the potential for targeted campaigns to unseat judges in the upcoming retention election became increasingly likely.
But now, a statewide campaign mounted earlier this week to unseat two state Supreme Court justices over their ruling allowing the 1864 abortion ban to stand seemed to have fired the proverbial starting gun, bringing the ethical and political contours of judicial campaigns and retention elections into full focus.
Judicial sources say the 2024 election could create a cycle of offensive campaigns and counter-campaigns riding along the political divide and will ultimately require some judges to form committees in defense of their place on the bench, all while staying in line with judicial ethics.
“This was something that we kind of hammered home … at the judicial conference,” Elliot said. “It’s uncertain but be prepared. You don’t want to be caught unprepared and then be unemployed come January 1.”
On April 22, Progress Arizona launched AZ Judge Guide, a campaign to unseat Arizona Supreme Court justices Kathryn King and Clint Bolick following their concurrence in the recent ruling upholding the 1864 abortion ban.
The campaign moves into the 2024 election with an intent to “leverage Arizona’s unique judicial retention elections as outlined in the state’s Constitution” to vote Bolick and King off the bench and see them replaced by appointees from Gov. Katie Hobbs.
“When judges overstep, Arizona’s Constitution empowers voters to step in,” Abigail Johnson, communications coordinator for Progress Arizona said in a written statement. “In extraordinary circumstances like the ones we are in today, removing judges who serve ideology over the people is not just a constitutional right, it is a civic duty. It’s up to voters to preserve the integrity and balance of the judicial system.”
Bolick and King have yet to establish campaign committees in response. But when the time comes, campaigning as a judge comes with ethical constraints tailored to uphold the appearance of an independent judiciary.
Elliot said the 2022 election, where three judges were not retained, and the current campaign track continues to veer off from the initial expectation of how judicial retention elections would play out in the state.
“When Arizona first moved to the merit selection and retention process, very early on, I don’t think anybody contemplated something like this. What judges running in retention elections were allowed to do was fairly limited,” Elliot said. “But over time, there have been targets, and that has been expanded.”
As it stands, judges in retention elections can form campaign committees. But judges cannot solicit donations, endorse or oppose candidates or make any pledge, statements or commitments that could stand to tarnish the appearance of judicial impartiality.
Judges can receive donations and endorsements, but Elliot noted a need to “be careful” about who and what provides support, saying the possibility for disqualification from cases down the line given any perceived conflict of interest.
And Elliot noted political party affiliation is not totally divorced from the judiciary, as judicial appointment recommendations go to the governor attached to a party and could either serve as a help or a hinderance, depending on the jurisdiction and scope of a judges’ election.
Direct challenges to judges and justices have been rare, though not unheard of, in the state.
Former Arizona Supreme Court Justice and Court of Appeals Judge John Pelander saw two unsuccessful attempts to see him off the bench during his tenure.
The first time Pelander went up for retention, he served as a judge on the Arizona Court of Appeals. He said his first retention cycle brought some flak from gun rights proponents. But he received advice not to engage, respond or combat the campaign against him.
“It’d be counterproductive,” Pelander said. “I came out just fine.”
But a second challenge to Pelander’s retention came around in 2012 from members of the Republican Party following a unanimous ruling allowing Proposition 121, a measure creating an open primary, to stay on the ballot despite allegations of fraudulent petition signatures.
Pelander was the only justice up for retention that year. And the effort opposing his retention prompted Pelander to, against his “instincts and better judgment,” form a campaign committee, which he noted he had “nothing to do with,” and hire political consultants to combat the effort.
“The advice I received from someone whom I trusted, is ‘you shouldn’t just sit on this, times have changed,’” Pelander said.
Pelander was overwhelmingly retained in 2012, receiving support from 73.94% of voters. But as he looks to the current cycle, he notes the “two justices in question today, like me, are somewhat out of their comfort zone.”
Going forward, he stressed the need for voters to look beyond the outcome of a single case.
“People need to take a step back, take a deep breath and look at the person’s entire record,” Pelander said. “If it’s a single opinion on an issue they care deeply about, I get it. But, even in that situation, read the opinion.”
Pelander added that campaigns against judges could continue to compound on all sides of the political spectrum and create “dangerous territory,” in preserving the independence of the judiciary.
“The last thing you want is judges having to put their fingers to the wind to assess the political consequences,” Pelander said.
Post-Roe Arizona abound in possibilities
Progressive group out to oust 2 state Supreme Court justices
Progress Arizona is launching a campaign to deny new terms to two of the state Supreme Court justices who voted earlier this month to allow the 1864 law on abortion to once again be enforced in Arizona.
And they’re gearing up to kill a proposal by a Sierra Vista Republican to strip voters of that right.
The organization that supports progressive causes wants to convince voters to exercise a seldom-used right to reject a bid by a judge to be retained in office. If they are successful, that would end the tenure of Clint Bolick and Kathryn King, both appointees of former Republican Gov. Doug Ducey.
Neither would comment on the effort.
It also would clear the way for incumbent Democrat Katie Hobbs to name their replacements.
None of that would affect the high court’s conclusion that the territorial-era law which outlaws abortion except to save the life of the mother trumps a 2022 statute allowing the procedure until the 15th week of pregnancy.
But given that the vote on that was 4-2, with Bolick and King on the prevailing side, allowing Hobbs to name two replacements if their bids for new terms are rejected by voters could change the balance of the court.
That, however, is just part of the fight.
The organization’s Abigail Jackson pointed out that the state Senate already has approved a proposal by Sen. David Gowan to alter that system that now gives voters a regular chance to oust judges. Instead, a judge or justice’s name would go on the ballot only if there had been some sort of incident, ranging from a felony conviction to personal bankruptcy, mortgage foreclosure, or if the Commission on Judicial Retention concluded their performance on the bench fell below standards.
What’s more significant is that Gowan’s measure, if it were approved by voters in November, would be retroactive. And that means King and Bolick would get to keep their seats, even if voters at the same election decided they should not.
SCR1044 already was approved by the Senate on a 16-14 party-line vote. It now awaits debate in the full House.
And, being a ballot measure, it would bypass Hobbs.
This would be the first significant change in how judges are selected and retained since voters approved what is known as “merit selection” in 1974.
Prior to that, judges were elected like all politicians. And that remains the case in counties of fewer than 250,000 residents.
Under the new system, when a vacancy occurs, applicants are screened by special panels who make nominations to the governor who then must choose from that list. Voters then get to decide on a regular basis whether to retain or reject a request for a new term.
If rejected, the process starts over again. Only six have been ousted in all that time, none from the Supreme Court.
Members of the Arizona Judges Association want that changed and retained former state Sen. Jonathan Paton to lobby for them.
Paton says that most Arizonans are totally unfamiliar with the judges. And he pointed out that in Maricopa County it is not unusual for the names of more than 50 superior court judges to be on the ballot.
What he got Gowan to sponsor would essentially be lifetime appointments, at least until mandatory retirement at age 70, for any Supreme Court, Court of Appeals or superior court judge in larger counties unless they got into trouble and their names were placed on the ballot.
Gowan did not return calls seeking comment. But Paton said the proposal has nothing to do with the legal fight over abortion, pointing out it was filed in February, two months before the Supreme Court ruling.
But what also is true is that everyone was aware that a decision was pending after the high court heard arguments in December.
And Paton defended the retroactivity clause that would override any decision by voters in November to turn King or Bolick out of office.
“The voters will decide if this is a good policy,” he said. Paton said having the change prospective only, meaning only those judges who would have to stand for retention beginning in 2026, “doesn’t make any sense.”
Jackson, however, said voters are entitled to have their say on judges, even if opposition is based on a single decision.
“Voters across the board are angry about this ruling,” Jackson said.
“This decision is not in line with what voters want,” she continued. “If Arizona voters want to use the power that the constitution gives them to hold them accountable, and their main concern is this ruling, then I think voters are within their rights and power to do so.”
Anyway, she said, it’s not like Progress Arizona is making the court political.
Jackson pointed out that there were just five justices on the Supreme Court until 2016. That is when Ducey convinced the Republican-controlled Legislature to expand the court to seven, a move that immediately gave him two appointments on top of the one he already had made.
Ducey argued that the change was justified by the state’s population growth.
But Democrats said that excuse doesn’t wash, pointing out that, even at five justices, that amounted to one for every 1.3 million residents. By contrast, California, with seven on its high court, had one for every 5.5 million residents.
That 2016 law enabled Ducey to add Bolick, a registered Libertarian, and Republican John Lopez IV. It also meant he named five of the seven justices; the two dissenters in the abortion decision, Chief Justice Robert Brutinel and Justice Ann Scott Timmer, were named by Jan Brewer, his predecessor.
Only six justices decided the case after Bill Montgomery, another Ducey appointee, disqualified himself.
The campaign by Progress Arizona puts Bolick and King in a difficult position.
While Progress Arizona can raise funds to defeat them – Jackson said she does not know how much that will take – Paton said the rules governing sitting judges prohibit them from soliciting funds to convince voters to keep them on the bench. Instead, only someone acting as a “surrogate” for them can raise money for a campaign.
Potentially more significant, the rules bar judges from speaking about or defending individual decisions. About the only option is the ability to respond to “false, misleading or unfair allegations” made against them during the campaign.
Paton said he did not know who would finance the campaign to convince voters to scrap the current way merit selection works.
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Religion has everything to do with abortion
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Republicans, lawyers struggle with next step on abortion ban
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Roe no reason to revisit gay marriage laws, Ducey says
Gov. Doug Ducey said he’s not interested in using the Supreme Court ruling overturning its own precedent on the right to abortion as a reason to revisit the question of whether gays should be able to marry in Arizona.
Ducey acknowledged that the justices, in their decision late last month, said it was wrong of the court to take the question of abortion away from the states 49 years ago.
“The Supreme Court has gone neutral on it,” the governor said of the new ruling.
“That issue comes back to the states,” Ducey continued, a conclusion he urged the justices to reach when he signed on a legal brief asking the court to overturn Roe v. Wade. “And now it’s left to the people.”
But it was the decision of the people of Arizona in 2008 to approve a constitutional amendment limiting marriage to “one man and one woman.” And that was the law of the land in Arizona until federal judges – and, ultimately, the Supreme Court in 2015 – held the U.S. Constitution requires states to license a marriage between two people of the same sex.
“I want to separate these issues out,” Ducey told Capitol Media Services when asked if the question of same-sex marriage, like the question of abortion, should be left to the states. And he said that the Supreme Court, in overturning Roe, was dealing with something different, something “that has been battled nationally for 50 years.”
The governor acknowledged that at least one justice suggested there are parallels between the Supreme Court preempting the right of states to regulate or outlaw abortion and rulings over the years which have overruled other laws about personal decisions.
Justice Clarence Thomas, in a concurring opinion on Roe, said the court’s decision concluding there is no “due process” protection for the right of abortion should be used to revisit not only its 2015 ruling on same-sex marriage but also its 2003 ruling overturning state sodomy laws and even its 1965 decision saying that married couples have the right to use contraception.
“Thomas said one thing,” Ducey said. But he pointed out that Justice Samuel Alito, who wrote the majority ruling, spelled out that the decision to overturn Roe and its constitutional right of abortion did not affect those other rulings.
“So the Supreme Court has spoken,” the governor said.
“I respect the process,” he said. “And I believe in federalism.”
And Ducey said that means questions like the rights of gays to marry are not necessarily left to each state.
“Federalism would say that there’s a mix between national government, the federal government, and what’s left to the states,” he said.
And what of that 56-44% decision by Arizona voters to say that gays should not be able to marry here?
“Well, the courts have since ruled on that,” Ducey said, deferring to the Supreme Court.
“Like I said, if you’re going to respect the process and be devoted to the Constitution, you have to respect the institutions.”
Salman announces resignation from state House
A Democratic state representative is resigning Dec. 31 to join a political action committee seeking to establish access to abortion as a constitutional right in Arizona.
Rep. Athena Salman, D-Tempe, announced she is resigning in a Wednesday news release. Her last day as a legislator will be eight days before the start of the 2024 legislative session.
“It has been the honor of a lifetime to be an authentic and compassionate leader for my community in the Arizona Legislature. I am forever grateful to my constituents and supporters for your support, and deeply appreciate the love and encouragement of my friends and family. Together, we will make history,” Salman said in a news release.
Salman, first elected to the House of Representatives in 2016, will be the director of Arizona Campaigns for Reproductive Freedom for All after she resigns. The nonprofit’s national parent is formerly known as NARAL Pro-Choice America, which has worked to establish state abortion rights since 1969.
“The right to decide if, when and how to start and grow your family faces the largest threat in generations. We are one bad court decision away from a 160-year-old total ban on abortion being reinstated in Arizona,” Salman said.
The Arizona Supreme Court will decide if a law from 1864 that bans abortions in nearly every circumstance supersedes current law that bans abortions after 15 weeks that was signed by former Republican Gov. Doug Ducey in 2022.
Abortion rights advocacy organizations like Reproductive Freedom for All are attempting to gather nearly 384,000 signatures from Arizona voters for a ballot initiative that would place a constitutional amendment on the November 2024 ballot, establishing abortion as a protected right if approved by voters.
Salman will be tasked with leading organizational efforts for 75,000 members across the state, according to her resignation news release.
Salman is the sixth lawmaker and the fourth Democrat elected in 2022 that is vacating their seat before their term ends.
Both former Democratic House and Senate minority leaders Andres Cano and Raquel Teran resigned during the 2023 session. Teran resigned on April 13 to pursue a campaign in Congressional District 3 and Cano resigned on July 4 to pursue graduate studies.
Sen. Flavio Bravo, D-Phoenix, resigned from his House seat shortly after Teran’s resignation to fill her seat in the Senate.
Former Republican Sen. Steve Kaiser, R-Phoenix, resigned on June 22 to lead a political nonprofit organization focused on electing conservative school board members.
House members also expelled former Republican Rep. Liz Harris from Chandler after they determined she engaged in disorderly behavior by inviting conspiracy testimony where a testifier accused several elected officials of taking bribes.
Salman’s district in Tempe is a safe for Democrats, according to the Arizona Independent Redistricting Commission. But Salman’s seat will still need a replacement and local Democrat precinct committeemen in the district must submit three candidates to the Maricopa County Board of Supervisors within 21 days. The board then will decide which of the three will be appointed to the legislature.
Senate bill to outlaw certain abortions gets tentative approval
State senators voted Wednesday to make abortions illegal if the woman is seeking to terminate the pregnancy because of a genetic abnormality of the fetus. The preliminary approval of SB1457...
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Senate kills proposal to fund pro-life program
Arizona taxpayers won’t be funding a special program designed to help groups that urge women not to terminate their pregnancies. HB 2759 picked up just 15 votes in the Senate...
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Senate panel moves bill to criminalize certain abortions
Senate revives failed abortion bill
A sweeping anti-abortion bill will get another chance to pass the Arizona Legislature, after Senate Republicans used a convoluted series of motions to override their own rules and send the bill back for amendments.
SB1457, which would criminalize abortions based on genetic abnormalities, appeared dead last week, after Sen. Tyler Pace, R-Mesa, voted against it on Wednesday and bill sponsor Nancy Barto, R-Phoenix, let the deadline to ask for a reconsideration pass.
But Republican senators, including Pace, today took four votes to waive portions of their rules and send the bill to a conference committee. There, lawmakers from both the House and Senate will work on amendments that could bring Pace on board.
Senate Democrats pushed for roll-call votes on every motion, all of which passed on 15-14 party line votes. And they decried the steps the majority party took to revive the bill.
“If you’re in the majority party and you don’t like the way a vote goes, you just change the rules,” said Sen. Victoria Steele, D-Tuscon. “That doesn’t seem fair.”
After Pace voted “no” on the bill last week, abortion rights advocates and opponents stepped up efforts to persuade him to stand his ground or revive the bill. The anti-abortion Susan B. Anthony List announced it would “mobilize activists” in his district, and Planned Parenthood and other groups that advocate for abortion rights sent regular reminders to supporters to call Pace.
“Many people have emailed, called me, left lovely messages all the way from wishing harm on me and my children to thanking me for voting no,” Pace said.
He thanked Barto and Senate President Karen Fann for speaking to him – he was meeting with Fann when he responded “I’m running away” to an attempt from the Arizona Capitol Times to ask him questions about an unrelated bill on Thursday – and said a conference committee could give an opportunity to resolve the issues he has with the bill.
Whatever amendments the conference committee ends up approving will be returned to both chambers for a final vote.
As it stands now, SB1457 bans all abortions based on genetic abnormalities, unless a doctor determines that the fetus has a severe abnormality that is “incompatible with life.” The bill also has language stating that unborn children at all stages of development should have the same rights and privileges as every living U.S. citizen.
Pace’s issues include a lack of clarity about the meaning of “reasonable medical judgment” and “incompatible with life,” which he said would leave juries to determine whether a physician on trial for performing an abortion exercised reasonable judgment.
Pace also worried that doctors could be prosecuted if they agreed to perform an elective abortion and then the doctor and patient discover a genetic abnormality.
A conference committee will allow him to work on those issues and make a better bill, he said. But Sen. Kirsten Engel, D-Tucson, countered that the right time to fix this bill is during the next legislative session. Instead, she argued, Republicans are acting like sore losers to revive a dead bill.
“It’s like kids being involved in a board game, one kid starts to win and the other kids all say ‘let’s get together and change the rules,'” she said.
Senate will vote on abortion repeal
The Arizona state Senate passed a motion Wednesday to introduce a bill repealing the pre-statehood abortion ban with some help from Republican members, although neither chamber voted on a repeal bill.
The chamber did not have their own clean legislation to revoke the law, so the pressure was on the House to act. That was until Sen. Anna Hernandez, D-Phoenix, made a motion for the late introduction of a bill.
Sen. Anthony Kern, R-Glendale, made a countermotion to table her proposal. Kern’s bid was shot down by a 13-17 vote. Republican Sens. T.J. Shope, R-Coolidge, Shawnna Bolick, R-Phoenix, and Ken Bennett, R-Prescott, joined Democrats to vote against it. Kern made multiple countermotions to recess or adjourn the chamber to further block an appeal, but they were rejected.
Hernandez’s motion for a late bill introduction passed with a 14-16 vote. This time around, Bennett voted with Republicans to oppose her proposal.
Legislative staff quickly drafted a new bill to repeal the abortion ban while the lawmakers worked through a collection of regular floor proceedings, such as third readings of bills.
The Senate’s attempt at a repeal came in the form of SB1734, which was brought forward for a first reading. Procedurally, the bill cannot get a second or third reading on the same day. So, the soonest a bill to rescind the abortion ban could leave the chamber is two weeks from now, if the Legislature stays on the once-a-week schedule it is currently following.
“What we did today, in the sense of emotion, happened under regular order, which is very important to me,” Shope said. “I don’t like doing things that are going to just upend the traditional respect for the institution.”
Shope said he was “absolutely” getting pressed by his Republican colleagues to change his mind on the repeal, but it was not unusual to him.
“I also have a bunch of emails in there (his laptop) about a bunch of bills we voted on today, and that comes from Democrats, Republicans and independents,” Shope said.
After the Senate had adjourned, Bennett explained the reasoning behind his change in votes.
“Right now, I’m not supporting a repeal, but two members of our caucus and the Democrats do support it,” Bennett said. “I think we need to move forward and get it done.”
Though he does not support a repeal, Bennett said he does think a repeal “gives us the best chance of defeating the Abortion Access Act.”
Earlier Wednesday morning, Democrats in the House attempted to put their repeal bill up for a vote but were blocked by a procedural motion from Republicans.
Rep. Stephanie Stahl Hamilton, D-Tucson, motioned for her bill, HB2677, to bypass House rules and be put up for a vote on the floor, similar to a move she did last week that was also blocked.
All 29 Democrats and Rep. Matt Gress, R-Phoenix, voted in support for the bill to be voted on but that was only enough to tie the measure 30-30. It needed a majority of 31 votes to pass.
“I am encouraged that very soon, potentially next week, we will have a vote to repeal,” Gress said. “Make no mistake about it, this law will be repealed. It will happen, it’s just a matter of time.”
Repealing the law would take a second Republican in the House to roll Speaker Ben Toma, R-Peoria, who said he doesn’t support the bill. No other Republican in the House was willing to be the 31st vote to override House rules Wednesday.
“The only way I would be willing (to put the bill up for a vote) is if a majority of my caucus wants that,” Toma said.
Only a few Republicans have publicly stated they support repealing the abortion ban, but Stahl- Hamilton expressed optimism that Democrats could convince more Republicans to vote with them on a procedural motion and allow her bill to be voted on.
While House members voted on the motion Wednesday, Stahl Hamilton and Gress were seen talking with other Republicans, including Reps. Tim Dunn, R-Yuma; Michael Carbone, R-Buckeye; and Justin Wilmeth, R-Phoenix.
“There’s a window, there’s a space where if we can figure out how to do it procedurally, we can get it done,” Stahl-Hamilton said.
Dunn said after the House adjourned that he made a commitment to his caucus that he would continue to have discussions on the issue.
“My commitment was to my caucus,” Dunn said.
Rep. David Cook, R-Globe, said last week he supports repealing the abortion ban, but he didn’t vote to roll Toma Wednesday.
Democrats in the House attempted to override House rules twice. Rep. Alma Hernandez, D-Tucson, made the same motion as Stahl-Hamilton immediately after the first motion failed, leading to the same 30-30 tie.
While Toma has stressed patience to members on the issue since bills don’t take effect until 90 days after the legislative session ends, Democrats expressed frustration that too much time has passed for this bill to be heard by a Republican legislative majority.
“We’ve had since 1864 to repeal this abhorrent law. And for the past six years, Democrats have introduced this bill … and have been ignored for every single one of them including this one,” Assistant Minority Leader Rep. Oscar De Los Santos, D-Laveen, said.
Instead, Republicans are seeking to put an alternative measure on the November ballot for voters. Preliminary plans, which include a “15-week Reproductive Care and Abortion Act” and a six-week “Heartbeat Protection Act” were accidentally released to all House members on Monday that indicate Republicans intend to dilute votes from the Arizona Abortion Access initiative
Rep. Alexander Kolodin, R-Scottsdale, said the caucus would soon release its ballot measure plan.
“Ultimately we must respect that on a decision as great as this, the ultimate folks who are going to make the call will be the people of the state of Arizona,” Kolodin said.
Gress said he is still considering the alternative ballot measures the caucus has discussed, but he also wants a repeal of the 1864 law.
“I don’t think we should be trying to deceive voters or to try to confuse voters. I think we should give them clear choices,” Gress said.
Stahl Hamilton said Democrats prefer a “clean” repeal but would be unable to stop a concurrent resolution against a united Republican caucus in the House and Senate since the measure would go to the voters instead of Gov. Katie Hobbs.
Toma said after the Senate introduced its repeal bill that it would meet the same fate as its House version if it got to the House.
“The truth of the matter is, I’d have to agree to bring it to the floor and I’m against abortion so I’m not going to agree to bring it to the floor,” Toma said. “Quite frankly, I don’t know how it’s different.”
Sinema must stand with innocent children, not abortion lobby
Supreme Court abortion ruling could influence Arizona cases
A new ruling Monday by the U.S. Supreme Court could aid legal efforts here to void a host of Arizona laws and regulations governing abortion.
In a 5-4 ruling the justices said Louisiana has no legal right to prohibit doctors from terminating pregnancies unless they also have admitting rights at nearby hospitals. The majority concluded that the statute placed a substantial obstacle in the path of women seeking an abortion.
More to the point, Justice Stephen Breyer, writing for himself and three other justices, said the requirement served no legitimate purpose in protecting the health of women. Chief Justice John Roberts joined in the conclusion with a separate opinion saying the court was bound by previous similar rulings.
On one hand, the challenges filed in federal court here in Arizona deal with different restrictions imposed over multiple years by the Arizona Legislature. These range from who can perform what abortion service to requiring women to make two trips to a clinic and forbidding doctors from prescribing abortion medications via telemedicine.
But attorney Catalina Vergara representing Planned Parenthood said the Arizona lawsuit is about more than the individual regulations. She wants a federal judge here to look not just at the individual hurdles being placed in the path of women but what Planned Parenthood says is the cumulative effect.
That cumulative effect, the lawsuit says, resulted in the closure of Planned Parenthood clinics in Yuma, Goodyear, Prescott Valley and Chandler. And the Flagstaff clinic can provide abortion services only one day a week.
What makes all that significant is the Arizona lawsuit cites the first time the U.S. Supreme Court ruled on the issue in 2016 when the justices said restrictions need to be judged on whether they create an “undue burden” on women.
Alice Clapman, a staff attorney for Planned Parenthood, said that means the courts look at the statutes “to determine if the benefits of the restriction outweigh the burdens.”
What makes Monday’s Supreme Court ruling so significant is that attorneys for Louisiana, while acknowledging the 2016 decision, were hoping to use it to get a different ruling from the high court this time around. That would have opened the door not just to uphold the existing Arizona laws but potentially pave the way for new ones.
But the high court majority concluded there was nothing wrong with the precedent set in 2016 and agreed it should remain.
That precedent, however, may hang by a thread.
“Today, a majority of the court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction,” wrote Justice Clarence Thomas, in his dissent.
He acknowledged earlier court rulings affirming a woman’s rights to have an abortion.
“But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” Thomas wrote. “Our abortion precedents are grievously wrong and should be overruled.”
That risk of overturning decades of precedent did not go unnoticed in a statement put out Monday by Arizona abortion providers who pointed out in a prepared statement that, technically speaking, there are still laws on the books that make it a crime to perform or get an abortion — or even advertises for the procedure. The only thing that keeps it from being enforced is the historic 1973 U.S. Supreme Court ruling in Roe v. Wade which declared that women have a constitutional right to terminate a pregnancy.
The abortion providers said the risk of a future Supreme Court ruling voiding that 1973 decision underscores the need for Arizona lawmakers to repeal those currently-unenforced laws on the books.
“Somehow providing for women’s health and safety remains a ‘substantial obstacle’ or ‘undue burden’ on a woman’s right to an abortion,” she said. “The tragedy of abortion continues in our land.”
But Herrod would not concede that Monday’s ruling dooms the Arizona restrictions.
“It will take some time to analyze the legal issues and implications,” she told Capitol Media Services.
In filing the Arizona lawsuit, Planned Parenthood is urging the federal court here to consider the implications.
“When states restrict abortion under the guide of women’s health they have to actually produce evidence that the restrictions enhance public safety,” Clapman said in filing the suit. She said several of the challenged Arizona statutes are “sham public safety laws where there’s no evidence of benefit.”
“The court is going to take a hard look at that evidence and really ask the state to justify these restrictions when they’re imposing a burden,” Clapman said.
Herrod, however, has argued the statutes at issue all are justified and justifiable.
“Abortion is different than other medical procedures,” she said in opposition to the lawsuit. “It involves taking of a life, it involves risks to the woman’s health.”
The Arizona lawsuit surrounds three basic areas.
First are what are known as “physician-only” rules, spelling out that abortions, both medical and surgical, as well as abortion-related procedures can be performed only by someone who is a doctor. Foes say there are many of these chores that can be done by specially trained nurses.
Challengers also say there is no medical reason to require a woman to visit a clinic and have an ultrasound at least 24 hours ahead of terminating a pregnancy for a consult with the physician.
The lawsuit also says Arizona not only allows but encourages the use of telemedicine, allowing medical advice to be given and prescriptions to be written after a video conference with the patients. But the lone exception is when an abortion is involved.
Sweeping abortion bill passes on party lines
Acting under the banner of protecting disability rights, the Republican-controlled legislature on Thursday voted along party lines to impose a new restriction on a woman’s right to terminate a pregnancy by making it a crime to abort a child because of a fetal genetic defect.
SB1457, which now goes to Gov. Doug Ducey, says any medical professional who performs or aids an abortion in those cases can be sentenced to up to a year in state prison. Ducey has not said whether he will sign or veto the measure.
The measure also:
– Allows the husband of a woman who seeks such an abortion or the woman’s parents if she is younger than 18 to sue on behalf of the unborn child;
– Outlaws the ability of women to get otherwise-legal drugs to perform an abortion through the mail or other delivery service;
– Declares that the laws of Arizona must be interpreted to give an unborn child the same rights, privileges and immunities available to anyone else.
“We must stand for those at risk, the children with Down’s syndrome and other genetic abnormalities, through no fault of their own, who are being snuffed out in Arizona and throughout our country, and need to stand up for their life,” said Sen. Nancy Barto, R-Phoenix, the sponsor of SB1457.
“What this bill is about is about giving a child the right to live,” said Sen. Warren Petersen, R-Gilbert. And he pointed out that Arizona already has laws against discriminating against those with disabilities.
“If we take actions to protect those with disabilities outside the womb, we should also protect them from discrimination inside the womb,” Petersen said.
But Rep. Rosanna Gabaldon, D-Green Valley, said those claims ring hollow.
“This bill is an attempt by anti-abortion groups to co-opt the mantle of disability rights,” she said. And Rep. Kelli Butler, D-Paradise Valley, said the measure is not being backed by any organization that lobbies on behalf of the disabled.
In many ways, the arguments by some of the supporters confirmed that the measure has less to do with disability than is a way for those who are opposed to abortion in all forms to find ways to chip away at the historic 1973 U.S. Supreme Court decision which says women have a right to terminate a pregnancy prior to the viability of a fetus.
“Abortion is not health care,” said Sen. Paul Boyer, R-Glendale. “Abortion takes the life of an innocent child every single time.”
And Rep. Jacqueline Parker, R-Mesa, whose grandfather was an obstetrician, said she sees nothing wrong with criminalizing abortion.
“A doctor who intentionally kills a patient should be charged with a felony,” she said.
Less clear is whether the measure is constitutional.
In the years since Roe v. Wade the justices have allowed states to impose some restrictions on the procedure. In general, though, these have been limited to questions of protecting the life of the mother.
Petersen pointed out that five other states have similar laws. That includes Ohio where the statutes say a doctor can be punished for performing an abortion after a patient says that a fetus having Down’s syndrome is part of her decision.
Earlier this month a divided federal appeals court agreed to allow that law to take effect, with the majority concluding that it furthers the state’s interest in affirming that individuals with the genetic disorder “are equal in dignity and value” with others. And the judges said that it does not impose an absolute ban on abortions.
None of these laws, however, has yet to get to the Supreme Court.
Sweeping abortion legislation voted down in Senate
A Republican senator who has developed a reputation for carefully parsing bills dealt a blow to Arizona’s anti-abortion lobby when he voted against what would have been the most far-reaching abortion legislation passed in Arizona in years.
Sen. Tyler Pace’s “no” vote, announced at the end of a lengthy speech April 6, killed a bill that would have made it a class 6 felony – punishable by at least a year in prison – for a doctor to perform an abortion based on a genetic abnormality.
“We can pass a bill that we know has errors and we can hope they get fixed by legislators that keep their promises, or we cannot pass them,” Pace said. “As I am the last person to vote on this, I get to make that choice. And I vote no.”
Pace, R-Mesa, has been vocal about his issues with SB1457 since Sen. Nancy Barto, R-Phoenix, first introduced it for a hearing. He reluctantly voted it out of the Senate a month ago based on Barto’s promise that she would work with him on amendments as it moved through the House.
Many lawmakers routinely vote bills they dislike out of committee, with the caveat that they’re moving them through the process and reserve the right to vote “no” on the floor without amendments.
But sending a bill to the House in the hopes of working out a palatable amendment in the other chamber, something Pace has done several times this year, is inherently riskier. Senators who vote a problematic bill out of committee know they’ll get another chance to vote it down on the floor, but if the House passes the Senate version of a bill without amendments, senators don’t get a second crack at it.
In this case, the House approved amendments, in part to bring Rep. Regina Cobb, R-Kingman, on board. When it returned to the Senate, the bill reduced the severity of penalties for physicians who perform abortions based on sex, race or genetic abnormalities, and it contained an exception for a “life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of life-saving medical treatment, is incompatible with life.”
Pace thanked Barto for working on amendments, but he said he still wasn’t comfortable passing the bill. For one thing, he said, the language doesn’t explain what “reasonable medical judgment” and “incompatible with life” mean.
Given that the bill would potentially subject physicians to prison for performing abortions, and therefore doctors could be put on trial and have jurors determine whether they used reasonable medical judgment, Pace said he was uncomfortable with the language.
“A jury would have to determine what medical judgment was reasonable,” he said. “We’re asking a panel of laypeople to determine medical judgment… That’s a large reach.”
He also questioned what would happen if a woman told her physician she wanted an abortion – as is her right under current law – and the doctor then discovers a genetic abnormality. It was unclear whether that doctor could be prosecuted, Pace said.
The Senate’s vote could not have been more different than the long and frequently emotional debate in the House a week ago. Senate Democrats had a sense that Pace or Sen. Michelle Ugenti-Rita, R-Scottsdale, could vote against the bill and stayed quiet instead of opining.
Voting proceeded silently and sluggishly, with eyes fixed on the second-to-last row on the right side of the aisle, where Pace and Ugenti-Rita sat. Pace’s eyes were glued to his laptop screen, rereading the bill, while Sen. Wendy Rogers, a Flagstaff Republican and fervent opponent of abortion who introduced a sweeping “fetal heartbeat” bill last week, whispered in Ugenti-Rita’s ear.
Pace and Ugenti-Rita then had their own conversations in the lounge for Senate members and at Ugenti-Rita’s desk, before Ugenti-Rita voted yes and Pace picked up his microphone.
While SB1457 appears dead for now, any bill can be resurrected before the Legislature adjourns sine die. Barto changed her vote to a “no” so she can attempt to bring it back on a reconsideration vote.
“I’m sorry I somehow didn’t get my colleague to put trust in me at this point,” she said. “I hope we can bring the bill back.”
Cathi Herrod, leader of the state’s most influential social conservative organization, also vowed to keep pushing for the bill.
“The effort to pass pro-life legislation in Arizona is far from over,” Herrod tweeted. “Today’s shortage of votes to pass SB1457 is disappointing. We will continue to work to get the truth out about the need for 1457.”
The death of SB1457 follows Senate President Karen Fann telling Capitol Media Services she will not bring Rogers’ bill to ban all abortions after about six weeks – before many women know they’re pregnant – to the floor for a vote because of constitutional concerns and because it lacks the votes.
Another bill that could have resulted in the death penalty for pregnant women who seek abortions and the doctors who perform them was not given a hearing in the state House.
The most notable anti-abortion legislation still moving in either chamber – likely to be part of budget negotiations – is a $3 million pilot program for so-called crisis pregnancy centers, organizations that counsel women against abortions and have been criticized for providing misleading information.
That bill died in 2019 when former Republican Sens. Kate Brophy McGee and Heather Carter voted against it on budget night, saying the money was better spent elsewhere. Carter’s primary loss to Barto and Brophy McGee’s general election loss to Democrat Christine Marsh cost the Legislature some of its last remaining moderate Republicans and raised anti-abortion lawmakers’ and lobbyists’ hopes that they would pass more bills this year.
Texas abortion law unleashes bounty hunters
The Supreme Court sequestered in its shadow docket after midnight has on Sept 1 in Whole Women’s Health v. Austin Reeve Jackson made several things clear. First, the court has zero credibility. They no longer decide legal cases based on the Constitution, the law, precedent, science or facts. They decide solely on politics.
Based on politics, not science or public health, they decided that people who oppose vaccines and masks have “my body, my right” to continue to harm others, exhaust medical resources, and prolong economic damage for religious reasons. But women whose decision does not impact public health or exhaust medical resources or prolong economic harm do not have a right to make their own medical decisions about their own bodies. For women, it’s “my body, somebody else’s right.”
The Texas law the court upheld authorizes complete strangers, abusive husbands, rapist fathers, religious extremists, and mentally ill people – fully armed – to attack women’s private, personal, health-care decisions. They can sue and be rewarded with $10,000. We have had bounty hunters before. We had the Fugitive Slave Law where bounty hunters chased Blacks to return them to slavery. We had the KKK that were set lose by the government to enforce Jim Crow Laws and beat, burn, and murder formerly enslaved people or those who tried to help them. For centuries we said husbands were not state actors so they could freely beat and rape their wives. None of these actions turned out well for democracy or freedom or equality or decency or human rights. Yet this is the hell the Texas legislature wants to return to and the Supreme Court condones.
While some of these same people bemoan the fate of the Afghani women and blame the Democrats (Republican President Bush started the war), they themselves seek to impose a regime on women as drastic as the Taliban. They want to let strangers spy on women’s every movement, report on where and when they are going for medical care, monitor medical staff, harass and sue counselors and friends. They have already set up a website to report women’s suspicious behavior – like Stalin in the Soviet Union. The Morality Police in Iran arrested women for wearing headscarves too short and the “morals police” under the Taliban in Afghanistan beat women for wearing the wrong shoes – the only thing that could be seen under the head-to-toe black covering. Today armed men are roaming around Texas policing women’s behavior. When does the airlift start to get the women to safety?
Some in Arizona have already praised this ruling and said we should do it here in 2022. Those claiming to be “pro-life” are not – or they would get a shot and wear a mask, oppose the death penalty, leave water in the desert, pay for maternal health care etc. They do none of that. They only seek to impose their religion on the rest of us. We won’t let them.
Dianne Post is legal director for Secular Communities for AZ.
U.S. Senate, governor candidates hedge on abortion
Arizona will elect a new governor and a U.S. senator later this year, and the two officials could play key roles in determining the abortion care that’s available to Arizonans for years to come.
In the wake of the U.S. Supreme Court overturning Roe v. Wade and sending abortion regulation back to the states, the issue has become one of the most important in the upcoming election.
All four of Arizona’s major-party candidates for governor and U.S. senator argue their opponents’ stances on abortion are unconscionably extreme, but none are willing to clearly detail the limits of their own positions on the politically explosive issue.
“Mark Kelly votes for the most extreme abortion laws in the world,” Blake Masters charged in a video posted last month on the same day that he deleted or rewrote several abortion policy stances presented on his own campaign website.
The Republican candidates – gubernatorial nominee Kari Lake, a former Fox 10 anchor, and Senate nominee Masters, a tech executive – have offered shifting statements throughout their campaigns.
Masters in particular appears to have made an about-face on abortion as he pivots his campaign away from a bruising GOP primary and toward a general election showdown against an incumbent candidate.
Democratic gubernatorial nominee Katie Hobbs, Arizona’s current secretary of state, and incumbent Democrat U.S. Sen. Mark Kelly have both made it clear that they want to protect the right to abortions at least to the standard of Roe v. Wade. But neither will say what limits, if any, they would support on abortion access.
Arizona currently has conflicting abortion laws on the books, and a court battle is already playing out to determine whether the state will be governed by a law signed this year by Gov. Doug Ducey that bans abortions after 15 weeks and includes an exception for medical emergencies, or a complete ban that dates back to Arizona’s pre-statehood era.
If legislators next session want to change the regulatory system that emerges from that case, they’ll probably need the signature of Hobbs or Lake.
Lake has said she’s “pro-life” but offered conflicting statements about policy.
In a candidate forum in February, she indicated that she likes the territory-era law that completely bans abortions, with no exceptions. Later, during the primary race, Lake’s campaign told The Arizona Republic that “Kari is pro-life but supports exceptions for rape, incest and life of the mother.”
In a speech after the primary election, Lake dodged a reporter’s question about her abortion stance. She replied, “I think we’ve got some good laws on the books,” without offering more details.
A spokesman didn’t respond to detailed questions about what abortion legislation Lake would consider signing as governor.
Barrett Marson, a GOP consultant, said the Supreme Court ruling changed the game for GOP candidates who could previously adopt hardline stances on abortion with the expectation that they would never become reality.
“Now it’s no longer theoretical. So now the most restrictive policies have real life consequences,” Marson wrote in a text message.
Those consequences, Marson added, are something that’s on the mind of a key voting bloc.
“Suburban women are giving a candidate’s position on abortion great weight as they consider who to vote for,” he said.
Hobbs, for her part, has consistently advocated for protecting abortion access, but won’t say whether that extends to rare, third-trimester abortions. Spokesman Joe Wolf provided a quote from Hobbs saying, “I will veto any legislation that compromises our right to choose.”
But does Hobbs think there should be any restrictions at all on abortion access? Would she sign a bill that expands abortion access in the state, but still prohibits the procedure in some circumstances? Wolf didn’t say.
At the federal level, Senate candidates Kelly and Masters could provide key votes for federal legislation to either expand or curtail abortion access across the country.
Kelly, for instance, backed a proposed law to protect abortion access when the life of the mother is at risk, and has said he would support legislation to codify the protections established by Roe v. Wade.
But he also said in a recent interview that there are “certainly limits” on his support for a woman’s right to choose. A spokeswoman for Kelly, Sarah Guggenheimer, declined to explain that quote or provide more details on any abortion restrictions that Kelly supports.
On the other hand, Masters’ website previously indicated that he was “100% pro-life” and supported a “federal personhood law” that would hold that “unborn babies are human beings that may not be killed,” as well as other legislation including a “pain-capable unborn child protection act.”
The website, however, has since been rewritten, with those sections replaced by a statement that Masters supports a ban on third-trimester abortions.
So, for Arizonans thinking about abortion access as they vote in November, what abortion regulations would Masters actually support as a senator? A spokesman only said, “Blake’s website outlines his views on the issue.”
Wait on Supreme Court justice nominee sparks speculation on outlawing abortion
The president’s choice for a new Supreme Court justice Monday means the ability of Arizona women to terminate a pregnancy likely depends on who is elected governor in November.
In picking a replacement for Anthony Kennedy, the president tilts the philosophical balance of the high court. More significant to some, it could provide the crucial five votes to overturn the historic Roe v. Wade decision that said women have a constitutional right to abortion.
That could return the legal landscape to where it was before 1973, where each state gets to decide whether to allow abortion and under what circumstances. And that, in turn, is why who is governor — and who gets the final say on state laws — will matter for those on both sides of the abortion debate in Arizona.
At this point in the campaign, the division over abortion rights appears to be breaking down along party lines, potentially making the question of abortion rights an issue in the general election.
All three Democrat contenders have vowed to use their power if elected to block any effort to impose any new restrictions approved by what, even after November, could still remain a Republican-controlled Legislature.
“I would veto any bill that came to my desk banning abortion in Arizona,” Kelly Fryer told Capitol Media Services.
Steve Farley, in a separate interview, cited his own record of 12 years in the Legislature of voting against limits on abortion.
“I’ll be standing against any attempt to put government in between a woman and her doctor,” he said.
David Garcia made a similar pledge. But he pointed out the issue may not be that simple.
Those pre-1973 laws making abortion illegal are still on the Arizona statute books. One even allows a woman to be imprisoned for up to five years for just seeking an abortion except to save her own life, with no exception for rape or incest.
“If Roe v. Wade is overturned we’ve got to figure out which of those laws are applicable and enforceable,” Garcia said.
Cathi Herrod, president of the Center for Arizona Policy, said that would depend on what words the justices use if and when they void Roe v. Wade. Put simply, Herrod said, the high court could rule that any state with an existing ban on abortions is free to enforce it.
But Herrod, whose organization seeks to outlaw legal abortion, said the decision may not be that clear or simple. And she pointed out that Arizona, unlike some states, does not have a “trigger” statute, one that would automatically enact — or reenact — new restrictions on abortions if Supreme Court gives states that power.
Maricopa County Attorney Bill Montgomery also noted that since 1973 federal judges have struck down various restrictions Arizona lawmakers have tried to enact, like a ban on abortions after 20 weeks of gestation. And he said that could make the wording of any Supreme Court ruling crucial in whether Arizona lawmakers need to revisit the issue if they want to try to reenact such limits.
Incumbent Doug Ducey dodged a direct question last week asking whether he would sign or veto legislation to outlaw all abortions.
“This is very hypothetical,” he said.
But with the governor unavailable for an interview Monday, press aide Daniel Scarpinato, said his boss “is pro life, and his record reflects that.”
That record includes signing every abortion restriction that reached his desk since taking office in 2015, including requiring women to be asked certain questions before they undergo an abortion, imposing new reporting requirements on abortion providers and clinics, expanding laws which require doctors to use “all available means and medical skills” to preserve the life a fetus born alive even if there is no chance it will survive, and limiting the use of RU-486 to terminate a pregnancy by non-surgical means.
And Ducey inked his approval to a measure locking Planned Parenthood out of a program that allows state employees to donate to nonprofit organizations through payroll deductions.
Ken Bennett, his GOP primary foe, touted his own record of supporting abortion restrictions in his eight years in the state Senate.
“I’m definitely pro life,” he told Capitol Media Services. “I do not support abortion other than a few exceptions (like) the life of the mother.”
And what of rape or incest? Bennett said there have to be curbs to ensure “that they have to be reported and it’s really a valid situation that happened, rather than just an excuse given.”
Bennett said one key to fewer abortions is fewer unintended pregnancies, which is why he does not favor restrictions on access to contraceptives. That is not just an academic question, as there actually is a law on the books, albeit unenforced, making it a misdemeanor to even publish an advertisement “of any medicine or means for … prevention of conception.”
“I think the Catholic faith kind of gets into that,” Bennett said. “But I don’t have a problem with women being able to be able to use whatever devices or medical methods and things to prevent unwanted pregnancy.”
Water, housing, abortion, teacher pay could be top issues for lawmakers
It’s taken four decades, Saudi cows munching on alfalfa grown with Arizona water and national headlines about whether Arizona is finally drying up. But state lawmakers appear to finally be...
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Why Arizona doesn’t force taxpayers to fund abortion
Two and a half weeks after Governor Doug Ducey funded the 211 hotline program in the midst of the coronavirus, a naturopathic medical student called for funding the 211 hotline program in the pages of this paper. Apparently, the hotline – which refers callers to a variety of services, including food banks, shelters and other generally available assistance – only counts if it includes referrals to abortion clinics.
The author, Adriana Berusch Gerardino, is either unaware or intolerant of a number of realities with which she disagrees. To her credit, she does admit being “confused.” The author is confused about the ongoing debate over abortion. She is confused about the rights of faith-based organizations and their inclusion in free speech. She is confused about the U.S. Constitution, and she is confused about who, exactly, is withholding information.
Arizona has a long-held policy of not using taxpayer money to fund abortion services. You’ll find it in the state’s charitable tax credit program, out of state abortion training for health care workers, and pretty much across the board.
Arizona follows this policy because of the continued controversy over the practice of abortion. Many Arizonans, including Arizona legislators, support protecting the preborn.
That confuses Ms. Berusch Gerardino, who labels debate over taxpayer funded abortions “absurd.” She calls for the silencing of those who disagree with her, saying, “We must also stop discussions debating the merits of abortion.” Considering what we now know about the early development of a baby in the womb, I understand why a pro-abortion activist wouldn’t want to debate the merits of abortion. But to call for censorship of speech on the issue is quite astonishing, as well as unconstitutional.
Though, the Constitution doesn’t seem to be Ms. Berusch Gerardino’s strong suit. Arguing against any input from Center for Arizona Policy, she claims, “Our Constitution calls for a separation of church and state.” No, no it doesn’t. That would be a political letter to the Danbury Baptists during a campaign in which Thomas Jefferson was assuring the religious minority in Connecticut of his support for religious rights, free from federal government intervention. He in no way was suggesting Americans with religious viewpoints have no voice in public policy.
The U.S. Constitution prohibits the government from establishing a religion, as well as prohibits any law that infringes on one’s right to exercise religion. The free speech rights of the First Amendment protect all, including those with religious convictions who participate in public policy.
The author interprets such opposition as “bullying,” but sees no such compulsion in literally forcing pro-life Arizonans to pay for abortions.
Ms. Berusch Gerardino often asks, “Why do we allow these organizations…” I don’t know who she is talking about when she uses the term, “we.” But the notion that anyone should be shutting down opposing viewpoints under penalty of law is, again, unconstitutional. It also says a lot about the suppressor’s lack of a convincing argument.
The author’s claim that not including Planned Parenthood in the 211 hotline program leaves women without non-abortion services is utterly untrue. It is widely acknowledged that Planned Parenthood’s menu of services starts and ends with abortion . In addition, Arizona women have nearly 200 community health clinics from which to choose. Compare that to the 10 Planned Parenthood clinics throughout the state. This shatters the suggestion that Planned Parenthood is a woman’s only option in any Arizona community.
Ms. Berusch Gerardino laments the lack of “access to information” about abortions. Does anyone really believe women don’t know they can get an abortion in Arizona, or that information on abortion is scarce? On the contrary, it was Planned Parenthood who fought laws requiring notification of risks and alternatives, and ultrasounds so women knew how far along they were in their pregnancies. It is Planned Parenthood who currently has a lawsuit against the state of Arizona fighting requirements designed to ensure women have access to all the information before deciding to have an abortion.
Abortion remains a divisive issue. Healthy debate on the merits is crucial in a free and diverse society. No one is excluded from the public square, because although Ms. Berusch Gerardino cannot fathom dissent, countless voting Arizonans know abortion is not health care.
Cindy Dahlgren is the Communications and Media Specialist for Center for Arizona Policy.
