Supporters and opponents of legal abortion are bracing themselves for a court ruling next year that could give Arizona lawmakers far more power to regulate or ban abortion.
The U.S. Supreme Court is weighing the constitutionality of a Mississippi law that bans abortion after 15 weeks of pregnancy, which goes against the standard set in the landmark 1973 Roe v. Wade ruling that generally prohibits states from banning abortion during the first two trimesters of pregnancy, about 24 weeks.
The court is expected to rule in June. While opinions differ as to whether the justices will overturn Roe entirely or issue a more narrowly tailored ruling, observers on both sides of the issue expect a ruling that will give states more power to regulate abortion.
Cathi Herrod, president of the Center for Arizona Policy, said. “As an attorney, I know to not ever predict what courts will do, but the likelihood that the U.S. Supreme Court, at a minimum, will uphold Mississippi’s law … is very high. The question (is) whether the court will go so far as to turn the decision on abortion regulation up to the states.”
The center, perhaps Arizona’s most influential socially conservative lobbying group, has worked on numerous abortion restrictions that have passed in Arizona over the years. Herrod hopes the court overrules both Roe and the 1992 ruling in Planned Parenthood v. Casey that upheld and expanded on Roe.
“The U.S. Supreme Court should … render an opinion rooted in the Constitution, rooted in the text, not a political decision,” Herrod said. “Roe v. Wade is a political decision. The Supreme Court legalized abortion. That is a legislative function, not a judicial function.”
Meanwhile, supporters of abortion rights are gearing up for what could be their most challenging legislative session yet.
“Abortion, when done by a medical professional, is one of the safest procedures a person can have,” said Murphy Bannerman, spokeswoman for Planned Parenthood Advocates of Arizona. “That is why it is critical that we keep abortion legal so people are not putting themselves in dangerous situations.”
Bannerman said she wouldn’t be surprised if someone introduces a bill in Arizona that would ban abortion after 15 weeks.
“Last session we saw two … even more extreme abortion bans introduced,” Bannerman said, referring to a proposal from Rep. Walt Blackman, R-Snowflake, that would have criminalized abortion as homicide, and a “heartbeat bill,” or a bill that bans abortion when a fetal heartbeat can be detected. That bill was sponsored by Sen. Wendy Rogers, R-Flagstaff.
Blackman’s bill never got a hearing and Rogers’ bill died after passing out of committee on a party-line vote.
“It’s completely plausible that a legislator will introduce an abortion ban and that given the makeup of our Legislature and our current governor it could pass,” Bannerman said.
Bannerman said banning abortion in Arizona could lead women seeking abortions to travel to New Mexico or Mexico, or “resort to extreme methods” to terminate an unwanted pregnancy.
“People might try and seek abortion care from those that are not actually medical professionals but are preying on people that are in a vulnerable state,” she said. “If you’re not trained, that can cause severe damage to the person’s health and potentially death.”
Republicans hold a two-vote majority in both chambers of the Legislature, and the GOP caucus is largely united in opposing abortion. Any new restrictions will likely get a sympathetic hearing from Gov. Doug Ducey, who so far has signed every anti-abortion measure that has reached his desk and who joined onto an amicus brief earlier this year with other Republican governors calling on the Supreme Court to overturn Roe.
House Majority Leader Ben Toma, R-Peoria, said the ruling’s impact on legislation “depends entirely on what the ruling is.” Like Herrod and many of Toma’s Republican colleagues, he wants to see Roe overturned.
“I think it should be up to individual states,” Toma said. “Setting aside the politics of it all, which is almost impossible of course given the subject, for me, Roe v. Wade was a constitutional stretch, big time.”
Toma said he hopes the upcoming legislative session is over by June, when the Supreme Court’s ruling is expected, although even if it isn’t, he said June would likely be too late to introduce a bill. However, the Legislature doesn’t have to do anything to ban abortion if Roe is overturned.
Arizona has a law on the books, passed by the 1901 Territorial Legislature, that punishes performing an abortion, unless it is necessary to save the mother’s life, with 2 to 5 years in prison.
The Legislature tweaked it this year to remove a previous penalty of 1 to 5 years’ imprisonment for women who get abortions but left the penalties for doctors in place. If the Supreme Court overturns Roe, Toma said lawmakers could let the old law take force again and wait until the 2022 session to make any changes.
“If Roe v. Wade is overturned, our default law in Arizona is actually fairly strong,” Toma said. “Abortions are not legal. I’m not entirely sure there would be any need to do something right away. But if it’s some sort of narrow decision, maybe there is an opportunity to pass something … (mirroring) what has already passed and been found constitutional in other states.”
Herrod said she would support the existing ban being enforced.
“That’s a law that protects both the lives and safety of mothers as well as the lives of their unborn children,” she said.
A couple of the Democrats running for attorney general have said they would refuse to prosecute women in such cases.
“I will not ever prosecute a woman or her doctor for exercising her right to reproductive freedom,” Bob McWhirter, one of the candidates, said at a recent Democratic gathering in Tucson. “I will not do it. I don’t care what passes in the Legislature because I have no intention of being on the wrong side of history on this question.”
Arizonans have mixed views on abortion, although a majority believe it should be legal. The most recent publicly available poll of Arizonans on the topic, conducted in September by the Phoenix firm OH Predictive Insights, found 40% of respondents think abortion should be legal under any circumstance, 47% think it should be legal under some circumstances and 13% think it should be always illegal. Sixty-two percent of those polled identified as pro-choice, 38% as pro-life.
The poll, an online opt-in panel survey, asked about a recent law in Texas that effectively bans abortion after about six weeks and found 39% of Arizonans approved of it while 51% disapproved.
The survey polled 882 registered voters September 7-12 and has a margin of error of of 3.3%
The partisan splits in OH’s poll broadly followed the lines one would expect, with Democrats mostly in favor of legal abortion and Republicans more opposed, although with noticeable minorities of pro-choice Republicans and pro-life Democrats.
Forty-five percent of Republican respondents identified as pro-choice and 36% of them opposed Texas’ law, while 21% of the Democrats said they were pro-life and 23% approved of the Texas law. Independents were split but closer to the Democrats in their views, with 65% identifying as pro-choice and 52% opposed to the Texas law.
Arizona Capitol Times Reporter Camryn Sanchez contributed.