Arizona women who are no more than 15 weeks pregnant will be able to keep getting legal abortions through at least the end of the year, if not beyond. That’s after Maricopa County Superior Court Judge Joseph Mikitish signed an order Tuesday barring Attorney General Mark Brnovich from trying to enforce a territorial-era statute that outlaws virtually all abortions.
Earlier this year the U.S. Supreme Court ended the constitutional right to abortion with its decision in Dobbs v. Jackson Women’s Health Organization. Now state legislatures are free to ban abortion, even though one in four women will receive one in her lifetime.
In Arizona, our appeals court recently ruled that abortions may take place again, at least for now, after blocking enforcement of an 1864 near-total ban that would criminalize doctors for providing care. Further complicating the legal landscape, a new law banning abortions after 15 weeks of pregnancy was enacted this year. Now the court will decide which laws apply.
Brittany Fonteno
Let’s be clear – neither law is a good solution. Neither law is based in medicine. Neither law protects pregnant people, nor deals with the reality of their lives. Contraception can fail, partners may insist on using no contraception, or it may be unaffordable. Whatever the cause, we already know the consequences of severe restrictions: the cruelty of abortion bans falls hardest on those who can least afford it.
Banning abortion does not take away people’s need to access abortion care. These laws disproportionally harm Black, Latino, Indigenous, and other people of color because of this country’s legacy of racism and discrimination. Also, for many people in Arizona, abortion has for decades been only a right in theory. Our state’s geography and restrictive laws meant vast areas of Arizona have offered no care at all.
Though abortion may remain fully legal in adjacent states, no one should have to leave their home state to access health care. According to the Turnaway Study, conducted by the University of California, “denying a woman an abortion creates economic hardship and insecurity which lasts for years,” including inability to cover expenses like food, housing, and transportation.
Magdalena Verdugo
Worst of all, this law intrudes upon and criminalizes the doctor-patient relationship. Quality health care and solid decisions can only be achieved in the context of a high-trust relationship. Restrictive abortion laws like the ones in Arizona destroy that trust. A doctor is fearful of regulators with an agenda, and a patient may be anxious about giving complete information lest they open a potential legal issue. With criminal penalties on the line, it is understandable that doctors may deny care, if they have even a shred of doubt about the circumstances of the pregnancy.
This is just wrong, it’s unconscionable.
Lawmakers have lost touch with everyday Arizonans who overwhelmingly want abortion to remain legal. Ninety percent of Arizonans agree that “each of us should have the freedom to decide how and when we start or grow a family, free from political interference.” (Source: NARAL & Change Research poll)
Why are policymakers enacting laws that almost seem as if they were designed to be cruel? How else can one explain the mandatory prison time for doctors and the lack of exceptions in the current law? Senate Bill 1164 includes NO exceptions for rape, incest, or health – only the life of the pregnant person. Any doctor or hospital can tell you that drawing that line is nearly impossible and will inevitably lead to unnecessary patient deaths.
When politicians treat access to health care like a blood sport, it is everyday people who pay the price. Nonprofits like ours are handed the human wreckage caused by this politically motivated indifference. How we wish elected officials would recognize that this is real life, affecting real individuals and families.
It will take all of us to restore sanity to reproductive health policy in Arizona. Thankfully, we know that most Arizonans possess common sense and compassion. We know that the real work that needs to be done here is to invest in the policies and programs that enable successful living: housing, child care, adequate pay, sick leave, prenatal care, post-partum care and so on. A government set on truly embracing “life” is one that will support hard-working families, and the decisions they make about their own care.
Brittany Fonteno is CEO of Planned Parenthood Arizona and Magdalena Verdugo is CEO of the YWCA Southern Arizona.
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 Litigation Director Julie Rikelman is seated right. Justices seated from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, Associate Justice Sonia Sotomayor, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Dana Verkouteren via AP)
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.
DeShawn Taylor
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.
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 Litigation Director Julie Rikelman is seated right. Justices seated from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, Associate Justice Sonia Sotomayor, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Dana Verkouteren via AP)
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.
Cathi Herrod
“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.
Murphy Brannerman
“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.
Brushing aside questions of legality and religion, a House panel voted March 17 along party lines to imprison doctors who terminate a pregnancy solely because the fetus has a genetic defect.
SB1457 was promoted by at least some of its supporters because it precludes women being able to get pills for chemical abortions by mail, without first seeing a doctor and having a medical examination.
Dr. Lance Holeman. who practices obstetrics and gynecology, told members of the House Judiciary Committee that about 2% of pregnancies are ectopic, meaning the fertilized egg has settled in somewhere outside the uterus. He said that a woman, seeking to terminate such a pregnancy without first getting a medical exam, would not know that fact.
More to the point, Holeman said the woman would not only find the drugs ineffective but actually could put her own life at risk.
But that language actually is only a small part of the legislation that is designed to give equal rights to an “unborn child” and seek to protect it in the name of preventing discrimination. And it would do that by sending doctors to prison for at least 2 1/2 years for performing an abortion knowing that the reason the woman is terminating the pregnancy is because of a genetic abnormality.
It also would give the woman’s husband or even the woman’s own parents the right to sue on behalf of the unborn child.
The 6-4 vote came even after Holeman, who said he does not perform abortions, urged legislators to eliminate those provisions.
“I’m certainly not in favor of criminalizing the doctor-patient relationship,” he told them.
Even House Speaker Rusty Bowers, R-Mesa, expressed concern about new criminal penalties. But that did not preclude him from supporting the measure.
Had he opposed it, SB1457 would have died on a 5-5 tie vote.
The bill was crafted by the Center for Arizona Policy, which has been at the forefront of multiple measures to outlaw or restrict the ability of a woman to terminate a pregnancy. It was being carried by Sen. Nancy Barto, R-Phoenix.
“What we’re trying to do is protect those that are most vulnerable in the womb,” she said. “And right now, it’s those with disabilities. They’re being singled out and targeted.”
But Rep. Melody Hernandez, D-Phoenix, said it’s not that simple. It starts, she said, with the measure adopting the “one specific religious view” into law.
SB1457 has verbiage to say that an “unborn child at every stage of development (has) all rights, privileges and immunities available to other persons, citizens and residents of this state.”
“It goes to the idea of when life begins,” Hernandez said. “Different religions have different ideas of when life begins and different ideas of how we should approach those discussions.”
Rep. Jacqueline Parker, R-Mesa, disagreed.
“It’s not really a religious issue,” she said. “It’s a scientific issue. “And we should be allowed to bring up science that supports when life begins, even if it’s inconvenient for certain agendas.”
Then there are the legal questions.
In 1973, the U.S. Supreme Court, in Roe v. Wade, affirmed the right of a woman to abort a child, at least before viability. That has been affirmed several times, though the justices have allowed states to impose regulations, but generally only those designed to protect maternal health.
Denise Burke, an attorney with the Alliance Defending Freedom, a Christian-based law practice that opposes abortion, said four other states already have laws similar to what is in SB1457.
She acknowledged, however, that none of these have made it to the nation’s high court. And Burke told legislators that there may need to be more states that enact such laws to get the issue before the justices.
That bothered Rep. Diego Rodriguez, D-Phoenix.
“As an attorney and a legislator, I do not subscribe to the tactic of passing bills simply to litigate them,” he said.
CAP President Cathi Herrod pointed out that Arizona already has a similar law on the books – a 2011 statute that bans abortion based on the race or gender of the child.
That was, in fact, challenged in federal court. But the case was thrown out because a judge ruled that the organizations that sued – the National Asian Pacific Women’s Forum and American Civil Liberties Union on behalf of the NAACP – had no legal right to bring the case absent evidence that any specific woman had been denied an abortion.
A spokeswoman for Planned Parenthood said her organization will not perform an abortion on any woman who tells them she is seeking the procedure because of gender or race.
Hernandez reacted angrily to the whole concept that men, who dominate the committee, “are able to legislate what we decide to do with our bodies.”
“Why are we allowing misogynistic bills to come through this Legislature?” she asked.
“This is my body, my choice, just like everyone wants to talk about whether they want to wear a mask,” Hernandez said. “This is my choice to decide on what I do with my medical care.”
The measure, which had cleared the Senate earlier this month on a 16-14 party-line vote, now faces consideration by the full House.
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.
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 considersfetuses 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 awritten 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 agendaplaced 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 Duceyexempts 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 alreadyhas 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.
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.
Gov. Doug Ducey( AP Photo/Ross D. Franklin, Pool, File)
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.
In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)
“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.
Planned Parenthood is a non-profit organization that provides reproductive health services. (Deposit Photo)
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.
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 “irreversible gender reassignment surgery” on minors.
“In Arizona, we know there is immeasurable value in every life, including preborn life,” the governor said in a letter explaining his decision to sign the measure curbing the right of women to terminate a pregnancy. “I believe it is each state’s responsibility to protect them.”
There is no exception even in cases of rape or incest. Only in cases where there is risk of the death or serious bodily injury to a woman can a doctor perform an abortion.
Those who act outside those limits can be charged with a Class 6 felony which carries up to a year in state prison. They also are subject to having their medical licenses revoked or suspended.
SB1164 is, for the moment, legally unenforceable as it runs afoul of long-standing U.S. Supreme Court precedents dating back to 1973 that say a state cannot interfere with a woman’s choice prior to the point when a fetus becomes viable. That generally occurs somewhere around 22 to 24 weeks.
But the legislation is built on the premise that the high court later this year will uphold a virtually identical Mississippi law.
Ducey also inked his approval to SB1165, saying it ensures that all public schools and any private schools that compete against them expressly designate their interscholastic athletics team based on the biological sex of participating students.
“SB1165 creates a statewide policy to ensure that biologically female athletes at Arizona public schools, colleges and universities have a level playing field to compete,” Ducey said in a letter explaining his decision. “Every young athlete should have the opportunity to participate in extracurricular activities that give them a sense of belonging and allow them to grow and thrive.”
In signing SB1138 on gender reassignment procedures, Ducey pointed out that the measure does not prohibit doctors from providing puberty-blocking hormones or any other hormone therapy to minors. What it does preclude is any surgical procedures until the person turns 18.
“SB1138 delays any irreversible gender reassignment surgery until the age of 18,” Ducey explained in that same letter.
“The reason is simple and common sense,” he continued. “This is a decision that will dramatically affect the rest of an individual’s life, including the ability of that individual to become a biological parent later in life.”
The governor noted there are exceptions in cases of certain specific sex-development disorders.
In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)
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.
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.
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.
Beth Lewallen
“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.
Wendy Rogers
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.
In this Feb. 19, 2020, file photo, Sen. Martha McSally, R-Ariz., speaks at a rally for President Donald Trump in Phoenix. PHOTO BY RICK SCUTERI/ASSOCIATED PRESS
Over the last month, thousands of Arizonans have taken to the streets to demand the state take action to confront structural racism and entrenched white supremacy. In Arizona and across the country, it’s clear that the tides are changing. It’s also clear that in this time of turmoil for our country, we need leaders who will push Arizona forward. It’s time to say goodbye to elected officials hell bent on pushing an extreme, out-of-touch agenda and usher in a new era of leaders committed to upholding our fundamental freedoms.
Senator Martha McSally is not that leader. From exploiting the pandemic to exacerbating xenophobia and racism against Chinese Americans to introducing legislation that would threaten the health, safety, and reproductive freedom of Arizonans, she has weaponized disinformation throughout her short tenure in the Senate to further an extreme ideological agenda. Politicians like Senator McSally are not fit to lead us into a better, brighter future.
McSally seems driven by her eagerness to appease President Trump, who has led the Republican Party’s agenda to control and criminalize marginalized communities – most recently by stoking racial tensions following the murder of George Floyd. Yet despite Trump’s overt racism and his botched response to COVID-19, McSally remains his cheerleader, happily rubber-stamping his extreme ideological agenda. As COVID-19 cases continue to spike in Arizona and across the nation, we’re reminded that the stakes of this election could not be higher.
Caroline Mello Roberson
On June 29, the U.S. Supreme Court issued its decision on June Medical Services LLC. v. Russo, a case that threatened to shut down abortion clinics, gut the protections of Roe v. Wade, and push access to care even further out of reach for millions. While the narrow 5-4 ruling upheld precedent and deemed Louisiana’s medically unnecessary, anti-choice law unconstitutional, it also left the door open for a more direct attack on Roe v. Wade. Make no mistake – this case was part of a coordinated effort by Republicans to criminalize abortion and roll back access to reproductive health care entirely. The fight for reproductive freedom is far from over.
While the courts can sometimes be a vehicle for oppressed and marginalized groups to find justice, thanks to the efforts of Republican lawmakers like Senator McSally to stack the courts with right-wing ideologues, the threats to reproductive freedom increase by the day. Since McSally was first appointed to the Senate she has helped load the federal judiciary with unqualified, racist, anti-choice, anti-freedom judges with lifetime appointments. With a record like this one, it’s no surprise that Senator McSally currently has a 0% rating from NARAL Pro-Choice America.
The reality is this: Arizonans currently face tremendous barriers to access reproductive health care. Arizona already severely restricts access to abortion, including interrogating patients about why they’re ending a pregnancy, forcing delays before a patient can receive abortion care, and subjecting patients to mandatory biased counseling. Black and brown communities are disproportionately impacted by restrictions like these, and without access, the freedom to make personal decisions about abortion is a freedom in name only (so, not at all).
Before Roe v. Wade became the law of the land, legalizing abortion nationwide, Arizona had already passed a ban on abortion. As it stands now, that law runs counter to the Supreme Court ruling and can’t be enforced. But if Roe falls, all bets are off, and Arizonans could see abortion in their state criminalized overnight.
Given the anti-choice majority on the Supreme Court, and the more than 20 cases in the pipeline to challenge Roe, the threat is not a hollow one: it’s a painfully realistic scenario. As we have seen from demonstrations across the country, the criminalization of Black and brown people is a national epidemic – one that would only be further exacerbated by the extreme bans on abortion championed by the Radical Right.
Now here is some good news: Arizonans have real choices this election cycle. Mark Kelly is running against Senator McSally and he knows the decision about if, when, and how to have a child is deeply personal and must be safeguarded.
The people of Arizona deserve leaders who will represent them fairly and advocate for them. Senator McSally has proven that she is not this leader, and will not fight for the freedom and dignity of all Arizonans. As we stand on the precipice of change, we cannot and will not back down in the face of attacks on our ability to determine our own destinies. We must hold politicians like Senator McSally accountable for putting our freedom at risk, and fight for the fundamental rights of everybody.
Caroline Mello Roberson is the Southwest regional director for NARAL Pro-Choice America.
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 1164. which will ban abortion at 15 weeks’ gestation, Thursday. It also passed SB1138, which bans performing sex reassignment surgery on minors, and SB1165, which bans transgender girls from playing on girls’ school sports teams. All three passed on party-line votes, with all 31 Republicans in favor and the Democrats (there were a few absent on each one) all opposed.
The abortion ban is unconstitutional under the current precedents set by the U.S. Supreme Court’s Roe v Wade and Planned Parenthood v Casey rulings, which generally prevent states from restricting abortion before about 22 to 24 weeks. However, this may have changed by the time the bill takes effect 90 days after sine die – the Supreme Court is expected to rule later this spring on a case challenging a Mississippi law that like this one would ban abortion after 15 weeks.
Many people on both sides of the abortion debate expect a Supreme Court ruling that will give states more power to restrict abortion than they have now, and this year Republican lawmakers nationwide have been scrambling to pass more abortion restrictions in hopes of a favorable ruling that will make them enforceable.
The transgender sports and surgery bans are also part of a national trend of red-state legislatures passing largely identical laws. Rep. John Kavanagh, R-Fountain Hills, compared performing reassignment surgery on youth to female genital mutilation. Democrats said lawmakers were interfering in private decisions.
“This is getting in the way of the child-parent relationship,” said Rep. Andrés Cano, D-Tucson. “It’s government overreach. It’s trying to give a win to special interest groups like the Center for Arizona Policy and Cathi Herrod, people who would rather divide us than bring us together.”
Supporters of the sports bill said letting transgender girls compete is unfair to girls that were born female.
“In my opinion, it’s unfair to allow biological males to compete in biological girls’ sports,” said Rep. Shawnna Bolick, R-Phoenix.
Kavanagh pointed to transgender swimmer Lia Thomas’ recent win as an example of why the bill is needed.
“I think those biological females have been cheated and robbed of a lifetime of effort,” he said.
Democrats said the bill would harm an already marginalized group.
“Those kids are just now coming into their own, and they’re living in a time where they can be who they were born to be, and we’re going to try to stifle that,” said Rep. Lorenzo Sierra, D-Avondale. “I can’t wait till kids who are in high school now, who are accepting and non-judgmental of their fellow human beings, are sitting in this chamber. That time cannot come soon enough.”
Democrats objected that the abortion ban makes no exceptions for rape or incest, or for medical situations such as the one described by Rep. Judy Schwiebert, D-Phoenix. She said her son and daughter-in-law tried for a long time to have a child, only to find out at about four months’ gestation that their child was developing without a complete skull or brain and likely wouldn’t survive outside of the womb.
“After their own devastation and prayerful consideration, my daughter-in-law and son chose abortion, and thankfully there was no state legislator like me or any of you looking over their shoulder to shame, judge, fine or even jail them or their doctors in this heartbreaking situation,” Schwiebert said.
The Hon. Kellie Johnson presides over a hearing in Pima County Superior Court in Tucson, Ariz. on Friday, Aug. 19, 2022. (Mamta Popat/Arizona Daily Star via AP, Pool)
A Pima County judge won’t halt implementation of her ruling that a territorial-era law outlawing virtually all abortions is once again enforceable.
In an order late Friday, Judge Kellie Johnson said Planned Parenthood Arizona had not shown it was likely to succeed when it appeals her week-old ruling. And she said challenges also failed to meet other legal standards for staying a court order while an appeal is pending.
Johnson also dismissed claims by attorney Andrew Gaona that she needed to resolve what he said are conflict between the old law and SB 1164.
That statute, which took effect on Sept. 24, also outlaws abortions except to save the life of the mother, with no exceptions for rape or incest. But there is a significant difference: The new law applies only in cases beyond the 15th week of pregnancy; the old law starts at the point of conception.
Nor did she accept Gaona’s claim that delaying her order was necessary to avoid hardships for doctors and others. Johnson said it’s not that simple.
“In considering the hardships involved, the court must necessarily consider the hardships to all parties and non-parties affected by the court’s analysis,” the judge wrote.
She did not expand on that. But Attorney General Mark Brnovich, who went to court to get the old law revived, had argued that the judge needs to consider the fact that staying her order and allowing abortions through the 15th week of pregnancy could mean harm to others.
“Abortion is permanent and results in the termination of an unborn life,” the attorney general argued.
And there’s something else.
Johnson, who was a registered Democrat until she registered as independent in 2021, said if Planned Parenthood does not believe the old later is not legally enforceable, it has other legal options, including filing a separate lawsuit.
The judge also rejected arguments by Pima County Attorney Laura Conover that she should stay the order because it creates hardships for her as a prosecutor.
Conover, like Gaona, cited the conflicts between the two laws. But Johnson said nothing in her ruling requires Conover to actually charge anyone with anything, including the old law.
That law, which traces it roots back to 1864, makes it a crime to perform an abortion, with a mandatory penalty of two to five years in state prison.
It’s enforcement was blocked by the state Court of Appeals in 1973 after the U.S. Supreme Court ruled in Roe v. Wade that women have a constitutional right to terminate a pregnancy.
All that changed in June when the justices overturned that decision.
Arizona Attorney General Mark Brnovich
That left states free to have their own restrictions. And Brnovich, pointing out the law had never been repealed, then got Johnson to dissolve the state court injunction and rule the old law was once again enforceable.
What complicated matters is that lawmakers earlier this year, approved the 15-week ban. It was modeled after a Mississippi law that was on review by the Supreme Court.
Supporters said the idea was to have a version on the books in Arizona if the justices upheld that law.
But the situation became muddled when the justices went a step farther, overturning Roe.
Planned Parenthood and Conover told Johnson she needed to consider whether the newer law effectively repealed the older one. And Gaona pointed out that even Gov. Doug Ducey said the 15-week law which he signed supersedes the older law.
Johnson, however, said it wasn’t her job to “harmonize” the laws, ruling for Brnovich, saying the old law is, in fact, now enforceable.
That led to bids by Planned Parenthood and Conover to get her to stay her order — and allow abortions to remain legal — while they appeal. Johnson rejected that in her Friday order.
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.
Douglas Rayes (Photo by Howard Fischer/Capitol Media Services)
“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.
Abortion rights activist protest outside of the U.S. Supreme Court Thursday, May 5, 2022 in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday. (AP Photo/Jose Luis Magana)
Editor’s note: This story has been revised to include comments from Paul Charlton and Rachel Mitchell that were inadvertently left out of the original published story.
The U.S. Supreme Court could rewrite the national landscape for abortion access, but it’s up to local officials to enforce any restrictions – and candidates running for key offices in Arizona have different plans if Roe v. Wade is reversed.
Anticipating the court’s move, the Arizona Legislature passed House Bill 1164 in March, banning abortion after 15 weeks, except in the case of a medical emergency. The bill mirrors the Mississippi law that’s in front of the Supreme Court in Dobbs v. Jackson Women’s Health Organization. Doctors who provide abortions – but not the women receiving them – could be prosecuted under the law.
There’s also a century-old law completely banning abortions that dates back to Arizona’s territory days, though it’s not completely clear whether that would take effect if the Supreme Court overturns Roe.
But Democrats in and running for prosecutorial offices say they’ll try to ensure nobody is punished for getting an abortion, regardless of state law.
Julie Gunnigle
Julie Gunnigle, the Democratic candidate for Maricopa County Attorney, has said that she wouldn’t enforce Arizona laws against abortion, even if they’re allowed under a future Supreme Court ruling. “Under my watch, no one will be criminalized for making a private decision about their own body,” she said in a statement on May 3.
Gunnigle has argued that declining to pursue abortion cases would fall under prosecutorial discretion.
In Pima County, County Attorney Laura Conover said in a statement that her office “will do everything in our power to ensure that no person seeking or assisting in an abortion will spend a night in jail.”
Still, Paul Bender, a professor of constitutional law at Arizona State University, said he’s skeptical that any county attorney would completely disregard state law on abortion, although he said those who oppose the law “may not follow it as enthusiastically” as those who support it.
A spokesman for the Pima County Attorney’s Office declined to explicitly say if the office would decline to pursue abortion prosecutions, saying they were still “digesting the draft opinion” that was leaked on May 2 in a Politico story.
But if a liberal county attorney declines to prosecute a doctor for providing an abortion, that doesn’t necessarily mean they’re necessarily off the book. If the county drops the case, the Attorney General could pick it back up.
“The Attorney General of the state has broad jurisdiction to prosecute cases that a county attorney does not go forward with,” said Paul Charlton, who served as U.S. Attorney for Arizona during the George W. Bush administration.
Rachel Mitchell
For now, the Maricopa County Attorney’s Office is temporarily in the hands of Rachel Mitchell, a Republican appointed last month to replace Allister Adel, who subsequently died. Mitchell is also running for the job in November. Her office didn’t reply to questions and her campaign could not be reached for comment.
But Mitchell has previously indicated she’d be inclined to decline prosecution in some kinds of cases, like when a pregnancy is the result of rape or incest. (The law passed by state legislators this year doesn’t include exceptions for rape or incest.) “While I will enforce the law – because it is not my role to say, ‘I’m not going to enforce the law’ – I think those situations perhaps are where prosecutorial discretion can be exercised,” she said in an appearance on 12 News April 29. “Because I do look at that and say, ‘that is a very tragic situation.’”
Mitchell has an indirect connection to the U.S. Supreme Court ruling – she was brought in by Republican senators during now-Justice Brett Kavanaugh’s 2018 confirmation hearings to question Kavanaugh and Christine Blasey Ford, who accused him of sexual assault.
The county attorneys have autonomy, meaning prosecutors in the state’s largest counties could have a major impact on abortion enforcement in Arizona, but they’re also subject to some level of supervision from the attorney general. And candidates for AG on both sides of the political aisle are now pledging to strong-arm county attorneys over abortion cases.
Andrew Gould, a Republican former Arizona Supreme Court justice, said that simply disregarding abortion cases would violate the separation of powers, because it would amount to a county attorney overruling the Legislature. “It becomes an issue of whether it’s a proper exercise of prosecutorial discretion – it is not,” he said.
Gould said that if he’s AG and a county attorney refuses to prosecute abortion cases, he would seek a court order compelling the attorney to do so. If that doesn’t work, he added, he’d move to have the prosecutor held in contempt of court.
Rodney Glassman, who polls indicate is the leader in the GOP primary for AG, said in a statement that the leaked opinion would represent “a monumental win for life and for state’s rights.”
“As attorney general, my job will be to enforce Arizona’s laws, including the laws preventing abortion in our state,” he added. A spokesman for his campaign didn’t respond to questions about how Glassman would address a situation in which county prosecutors decline to prosecute cases.
On the Democratic side, AG candidate Kris Mayes said she would use the office to prevent prosecution of women or doctors over abortions.
Mayes argued that an express privacy provision in the Arizona Constitution confers a right of access to an abortion. And that, she said, means laws restricting abortion in Arizona conflict with the state Constitution and can’t be enforced.
“I would do everything in my legal power to stop a county attorney from prosecuting abortion,” she said, up to and including suing a county attorney who does it anyway.
Bender and Charlton, for their part, cautioned that state sway over the county attorneys is limited.
“There’s a great deal of independence and a great deal of discretion that prosecutors have,” Charlton said.
There’s also a question of further legal challenges, potentially including a state-level challenge to one or both of Arizona’s abortion laws. If that happens, it could fall to the AG to defend Arizona’s law – or not.
Gould, for one, said that he would defend the state law passed by the Legislature. “If this is the published final decision – and I do support (it) – then I would defend Arizona’s current law, which is very similar to the Mississippi law,” he said.
This artist sketch depicts Mississippi Solicitor General Scott Stewart, standing while speaking to the Supreme Court, Wednesday, Dec. 1, 2021, in Washington. (Dana Verkouteren via AP)
January 22, 2022 marks the 49th anniversary of the Supreme Court’s decision in Roe v. Wade. But this year, young women/people facing pregnancy could face significant harm as the first generation in half a century to enter adulthood without the fundamental right to make the decision whether to continue a pregnancy.
Debbie Esparza
In the last 50 years, we’ve made tremendous strides in improving the economic outcomes, educational attainment, health and safety for women in this country. All of that stands to be undermined by the Supreme Court.
Women/people who are denied an abortion are four times more likely to live in poverty than women who can access care. Restrictions on abortion care will hurt working-class and low-income women/people the most.
Punitive abortion restrictions like those in Texas disproportionately affect women of color, LGBTQ persons, young women, immigrants, low-income people, and others who have difficulty accessing health services.
The YWCA is a trusted voice to some of the most vulnerable communities in the country. Here in Arizona, YWCA Metropolitan Phoenix provides important programming for women, people of color, and seniors, and we’ve been doing it for the last 110 years.
Our programs includepreparing and distributing meals to home-bound and isolated older adults. We also help women and their families gain financial independence by providing free financial education courses and financial coaching. We challenge systemic inequality through our advocacy program by hosting workshops for the public to attend, partnering with organizations like the Women’s March to advocate for women’s rights, and supporting bills like the John Lewis Voting Rights Advancement Act to dismantle barriers and ensure freedom, justice, peace, and dignity for all.
Every person has the constitutional right to make decisions regarding their reproductive health.
Congress needs to pass the Women’s Health Protection Act and solidify the right to access abortion services free from burdensome and often medically unnecessary restrictions. This bill will also protect providers, ensuring everyone has continued access to safe abortion care.
You can support the Women’s Health Protection Act to make sure no one has to cross state lines to receive this critical medical care. Write to your members of Congress today.
Dave Behrle, 70, of Safety Harbor holds a sign while standing outside the All Women’s Health Center of Clearwater on Tuesday, May 3, 2022. A draft of a U.S. Supreme Court brief was leaked Monday that suggests the court could be poised to overturn the landmark 1973 Roe v. Wade case. (Chris Urso/Tampa Bay Times via AP)
Arizona is facing the possibility of a total ban on abortions this year if states get back the power to enforce their own abortion regulations.
A leaked decision from the US Supreme Court shows that the conservative justices are preparing to overturn Roe v Wade, potentially reverting Arizona to a pre-Roe anti-abortion policy.
In Arizona, there are two conflicting laws that could go into effect: a total ban on abortions via a 1912 territorial-era law predating Roe v Wade, and a new law that was just signed in March banning abortions after 15 weeks.
“Yes, the pre-Roe ban on the books in Arizona would likely still be considered valid law,” Senate Rules Attorney Chris Kleminich said in a text. “It will be up to the courts to decide.” Kleminich expects the territorial law to take precedence because the new law does not go into effect until 90 days after the Legislative session ends. “At minimum there will be that interim period where the existing law is the only one on the books.”
The Supreme Court will likely make their official decision overturning Roe v Wade in June, meaning between then and three months after the Legislature adjourns, only the territorial-era ban law will be on the books. There are still conflicting ideas about how this will play out. Gov. Doug Ducey said in an interview with Capitol Media Services last week that he does not believe the old law will go into effect. However, others including conservative Center for Arizona Policy President Cathi Herrod believe that Arizona will be able to enforce the older ban. Herrod was the architect behind many anti-abortion laws over the past several years in Arizona and pushed Sen. Nancy Barto, R-Phoenix’s 15-week bill this year.
Herrod said on Monday that Roe v Wade should make the pre-Roe v Wade law enforceable again. “The 15-week limit and the other laws that regulate abortion would not be really enforced,” she predicted.
The 15-week ban Arizona passed this year classifies administering an abortion as a class 6 felony and an act of unprofessional conduct that could result in the suspension or revocation of the physician’s license. If a physician does perform an abortion after 15 weeks, they must file a report to the Department of Health Services or be penalized with a fine. An abortion can still be performed after 15 weeks in the case of a medical emergency.
Demonstrators protest outside of the U.S. Supreme Court Tuesday, May 3, 2022 in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday. Whatever the outcome, the Politico report represents an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance. (AP Photo/Jose Luis Magana)
The territorial-era law bans abortion in all instances, under penalty of 2 to 5 years in prison for the abortion provider. The original law also punished the woman seeking an abortion with 1 to 5 years in prison, but this part of it was repealed as part of last year’s Senate Bill 1457. Paul Bender, a constitutional law professor at Arizona State University, said he isn’t sure whether the old law will immediately become enforceable or not if Roe is overturned.
“I don’t think anybody knows the answer to that for sure,” Bender said Tuesday. “It may very well. … The safe thing for the Legislature to do, if it still believes that, would be to, after the Supreme Court opinion gets handed down and I think 10 days after they announce it, the Legislature just pass whatever statute they want now.”
Bender said there are questions “because that’s such a rare thing to happen, to have a law passed that long ago, when so much has changed since then” come back onto the books and be enforceable.
“I’m not sure what the precedents are,” he said. “My sense is, there’s no clear rule about whether this law will spring back into effect.”
Demonstrators protest outside of the U.S. Supreme Court Tuesday, May 3, 2022 in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday. Whatever the outcome, the Politico report represents an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance. (AP Photo/Jose Luis Magana)
However, another consideration – and one that, Bender thinks, might make abortion foes hope the old law is still enforceable – is that a new law would be subject to the referendum petition process after the end of the legislative session, while the existing territorial-era law would not be. Bender thinks there is a decent chance that abortion rights supporters would be able to get enough signatures to force a public vote on a new abortion law in November 2022.
“Because that would be so contentious and disruptive, I think there would be a feeling of some people (that) they would just like the old law to go into effect,” Bender said.
Sen. Tyler Pace, R-Mesa, supported the 15-week abortion ban, but said that he would not have voted in favor of a proposed 6-week “heartbeat” ban. Pace declined to comment on whether he opposes a total ban, but he said he would “do something” if the law is interpreted to include contraceptives.
“It would have to depend on how it actually turns out and what the lawyer thinks it looks like,” Pace said. If enough conservatives in the Legislature share this view, it is possible that an effort to overturn the territorial law will go forward next session, but it will be up to new House and Senate leadership to get those bills through. Current House and Senate leaders are leaving the Legislature this year.
Even if Roe is overturned, abortion will still generally be legal in Democratic-run states, which will likely lead many women seeking an abortion to travel to states such as California and New Mexico. Although a few red states have been discussing laws to criminalize traveling to get an abortion, Bender said he doesn’t think this will stand up in court.
“That wouldn’t surprise me if they try to do that,” Bender said. “I don’t think that would be constitutional, but who knows what the Arizona Legislature would experiment with.”
Recent polling shows a majority of Arizonans think abortion should be legal. A 2021 poll by the non-partisan survey group OH Predictive Insights determined that around 62% of Arizonans are “pro-choice” and only 38% identify as “pro-life.” The poll found 51% of Arizonans opposed the “heartbeat” bill Texas passed last year, while 39% supported it and 10% were unsure.
With the Supreme Court likely to overturn Roe, much of the focus of abortion rights supporters will likely turn to pressuring Congress to pass protections for abortion federally. And Arizona’s senior senator will be at the center of this debate.
U.S. Sen. Kyrsten Sinema has consistently supported abortion, but she has also consistently opposed modifying or getting rid of the filibuster, a prerequisite to pass federal legislation on the topic given that there is no chance 60 senators will support it. She issued a statement Tuesday supporting Roe while also noting that “protections in the Senate” have been used a half-dozen times in the last 10 years to block anti-abortion legislation.
“Throughout my time in Congress, I’ve always supported women’s access to health care, I’m a cosponsor of the Women’s Health Protection Act, and I’ll continue working with anyone to protect women’s ability to make decisions about their futures,” she said.
Sinema’s response didn’t cut any ice with more progressive Democrats. Rep. Athena Salman, D-Tempe, said Sinema “cares more about protecting the filibuster than protecting reproductive rights.” U.S. Rep. Alexandria Ocasio-Cortez, D-NY, called for Sinema to be primaried.
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.”
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 came over objections from some legislators who said the state provides little support for women who decide to maintain their pregnancy even after learning that information. And Sen. Martin Quezada, D-Glendale, pointed out that even the Senate attorney said the measure is unconstitutional.
But Sen. Sally Ann Gonzales, D-Tucson, said the issue for her is even more basic.
“As a woman, as a mom of five daughters and the grandmother of 10 young ladies I’m extremely opposed to anyone of us legislators really imposing our faiths on everybody else and on my family,” she said.
Sen. Nancy Barto, R-Phoenix, who is sponsoring the legislation, said she believes her bill will protect women.
“What we’re doing here by not addressing this issue is we’re hurting the most vulnerable among us and making a judgment that they are unworthy to live,” she said.
At the heart of SB1457 is a legislative declaration that Arizona laws recognize that an unborn child has “all rights, privileges and immunities available to other persons, citizens and residents of this state.” The only limits would be the U.S. Constitution as interpreted by the Supreme Court.
Efforts by Barto and allies to outlaw abortion entirely have been thwarted by the 1973 Roe v. Wade decision of the high court and its successor rulings which say, in essence, that women have an absolute right to terminate a pregnancy prior to a fetus becoming viable. So Barto is focused on a narrow subset of abortions: those done by a woman who is carrying a child with a genetic abnormality.
Sen. Kirsten Engel, D-Tucson, said Barto appears to be using this specifically tailored legislation to get a test case about the limits of Roe v. Wade to the Supreme Court. But she said lawmakers need to think about more than the constitutional issues.
“Abortion is clearly a very personal issue,” Engel said. “It’s a complex decision and so much more so when a family receives the diagnosis from a doctor that the child may have a genetic abnormality.”
Some of those abnormalities, she said, are “incredibly serious,” with a fetus dying in the womb or shortly after birth, and potentially even endangering a woman’s health.
Yet SB 1457 would make it a Class 3 felony for a doctor to terminate such a pregnancy, a crime that carries a presumptive 3.5 years in prison for a first-time offense.
Quezada said that still leaves the legal issues.
“This is a clearly and obviously a blatantly unconstitutional bill,” he said, citing the legal opinion of the Senate attorney that the measure runs afoul of current court rulings and legal precedents.
Barto, however, said lawmakers in Mississippi, Missouri, North Dakota and Tennessee have enacted similar laws and all remain on the books. None of those statutes, however, have reached the U.S. Supreme Court.
The measure also would outlaw the use of telemedicine for medical abortions, precluding women from getting abortion-inducing pills through the mail. It also would require that any aborted fetus be either buried or cremated and impose new restrictions on public educational institutions from counseling or referring a woman for an abortion other than to save her life.
A final roll-call vote is needed before the measure goes to the House.
State lawmakers took the first steps Thursday to curbing abortion rights in Arizona if the U.S. Supreme Court gives them the go-ahead to do so.
SB 1164, approved on a 5-3 party-line vote by the Republican-controlled Senate Judiciary Committee, would make it a felony to abort a fetus — called an “unborn human being” in the measure — beyond the 15th week of pregnancy except in cases of “medical emergency.” Doctors who violate the law could face a year in state prison and loss of their medical license, though there would be no penalty on a woman who obtained the procedure.
The sponsor of the measure, Sen. Nancy Barto, R-Phoenix, as well as many who testified all made it clear they oppose abortion at any stage. But that hasn’t been an option since the historic 1973 Roe v. Wade decision and subsequent rulings which have said women have a right to choose prior to a fetus being viable.
What has changed is that the high court is now weighing a 15-week ban approved by Mississippi lawmakers.
The justices could use that case to overturn Roe, in which case the state’s own abortion ban, which dates to territorial days, could once again be enforced.
SB 1164, however, is a contingency plan in case the court simply affirms the Mississippi law but leaves Roe in place. It would put a statute on the books that would immediately take effect.
Thursday’s debate featured what have been pretty much the same arguments that have been made in every abortion measure heard since Roe.
“Obstetricians know that later-term abortions correlate with multiple risks to a woman’s health,” testified Dr. Allan Sawyer, past president of the American Association of Pro-life Obstetricians and Gynecologists. He said SB 1164 would reduce the risk of maternal trauma and hemorrhage.
“Relationship failure, hemorrhaging, cervical or uterine damage, depression, anxiety, PTSD, suicidal thoughts, alcohol and drug use are all potential physical, psychological and emotional side effects of having an abortion,” said Rachel Van Hosen who works for Crisis Pregnancy Center in Phoenix. Van Hosen, who had a legal abortion as a minor — she said got permission from a court in lieu of parental consent — said she experienced many of them herself, “none of which were told to me.”
But Monica Schutz told lawmakers she and her husband have a genetic defect that produces fetuses that have abnormalities that cannot be detected early in the pregnancy, fetuses that have no chance of survival. Banning abortions at 15 weeks, she said, would endanger her life and sharply reduce the chance of getting pregnant again and trying for a healthy child.
And Harlie Jackson spoke of her own decision at age 18 to have an abortion “because I knew I was not mentally, physically or economically able to raise a child.”
Much of the debate, however, focused on what would happen if abortion after 15 weeks no longer is a legal option in Arizona.
“As long as there are unwanted pregnancies, there will be abortions,” said Marilyn Rodriguez who lobbies for Planned Parenthood Advocates of Arizona.
Even if the Supreme Court overturns Roe, all that will do is return the decisions about abortions to individual states. And several already are positioned to keep the procedure legal.
The Center for Reproductive Rights says that the California Supreme Court recognized the legal right to abortion in 1969, four years before Roe.
Nevada voters approved a measure in 1990 protecting the legal right to abortion. And other states ranging from Washington to New York have statutes allowing women to terminate their pregnancies.
“Now, folks with privilege like you and me … will always have the means to travel abroad to places where abortion is safe and legal, when and if we need it,” Rodriguez told legislators.
“The bill in front of you will decide whether those without the means will be forced to carry a pregnancy to term against their will or to seek unsafe, back-alley methods of terminating pregnancy,” she continued, calling the measure “cruel.”
But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said that’s looking at it from the wrong perspective.
“What we’ve seen in the 49 years that abortion has been legal in this country (is) that abortion has been moved from the back alley to inside the abortion clinic,” she said. And she said claims that women will die from illegal abortions has been “widely debunked.”
Barto had her own take on the issue, saying there is no “safe option” for abortion.
“It’s not safe for the baby,” she said. “We know that.”
Sen. Wendy Rogers, R-Flagstaff, also said she sees it from that perspective.
“Who are we, as a nation, if we don’t give voice to the unborn, to the unprotected, to the child that has no voice, who wishes to be born and has no power in that equation to have that choice to be born,” she said.
“Who are we, as a nation, if we don’t give voice to the unborn, to the unprotected, to the child that has no voice, who wishes to be born and has no power in that equation to have that choice to be born?”
Sen. Wendy Rogers, R-Flagstaff
But Sen. Martin Quezada, D-Glendale, restricting abortion access doesn’t advance the health of Arizona women.
He said that’s not just his view but also that of the federal judge in Mississippi who ruled that state’s law illegal who called lawmakers there “hypocritical, pretending to care about women’s health and the well-being of the unborn and people of color while tolerating poverty, maternal death rates and curtailing health-care programs like Medicaid.” And Quezada said lawmakers here should be heeding that advice.
“We should be focused on that,” he said. “Government should not be preventing a woman from making a decision about her own body for herself.”
The legislation, which now needs full Senate approval before going to the House, would affect fewer than 5% of all abortions.
In 2020, the most recent year for which figures are available, the Arizona Department of Health Services reporters there were 13,186 abortions performed on state residents. Of that total, just 636 were beyond 15 weeks of pregnancy.
Even some foes of the measure concede there are probably the votes for the measure, with the Republican-controlled legislature having a history of approving bills all designed to restrict the process as much as they think they legally can.
That includes a 2012 bid to outlaw abortion at 20 weeks which was declared unconstitutional by a federal appeals court and, just last year, an outright ban on abortions based on fetal genetic defects which also has been enjoined.
And Gov. Doug Ducey has signed every abortion restriction that has reached his desk.
There is a separate measure, HB 2483, introduced by Rep. Teresa Martinez, R-Casa Grande, which would create a Texas-style “heartbeat” abortion ban. It would allow any individual to sue doctors or even those who aid a woman to get an abortion and be able to collect $10,000 penalties.
So far, though, House Speaker Rusty Bowers, R-Mesa, has not assigned that measure to any committee for a hearing. And Herrod told Capitol Media Services that while she supports all efforts to restrict abortion, it is the Barto bill she is backing.
The Arizona Supreme Court will review the case of a woman who faked cancer to obtain a state-paid, mid-term abortion in 2010.
Chalice Renee Zeitner, 33, was sentenced to 28 years in prison after she was convicted on fraud, theft and forgery charges. She produced a falsified letter purportedly from a doctor at the Brigham and Women’s Hospital in Boston, claiming she needed the abortion so she could undergo life-saving treatment. Zeitner was ultimately able to trick doctors and the Arizona Health Care Cost Containment System into believing that she was terminally ill and needed the procedure.
Zeitner’s attorney, Adam Schwartz, had unsuccessfully asked the Maricopa County Superior Court to suppress information gleaned from six doctors who treated her, claiming she never gave consent for her medical history to be disclosed.
Zeitner made the same argument on appeal, arguing her physician-patient privilege was violated when her medical records were admitted to the court and her physicians allowed to testify against her. But that argument failed again, and the Appellate Court upheld her convictions in January.
The baby, Aryana Vasquez, was ultimately delivered prematurely at 22 weeks and three days and allowed to die in Zeitner’s arms. The U.S. Supreme Court decision in Roe v. Wade puts viability at 24 weeks.
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.
In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)
The head of the state’s premier anti-abortion organization said Thursday she is looking to use the newly enacted Texas ban on the terminating a pregnancy after fetal heartbeat has been detected as a template for legislation here.
Cathi Herrod, president of the Center for Arizona Policy, said the late-night decision Wednesday by the U.S. Supreme Court to allow the Texas law to take effect appears to provide a “road map” for enacting abortion restrictions in this state that, until now, have been struck down by federal courts.
But the key to the Supreme Court action is the difference between SB 8 and all other abortion restrictions.
Laws from other states make it a crime to terminate a pregnancy in certain situations or after a certain date, with the state in charge of enforcing the law and prosecuting offenders.
For example, a 2012 Arizona law to make it a crime to perform an abortion after 20 weeks was struck down by a federal court, a decision upheld by the Supreme Court. Similar laws from other states have met similar fates at the high court.
Cathi Herrod
In Texas, however, the law empowers individual citizens — and not necessarily from Texas — to file civil suits against not only abortion providers but anyone who “aids or abets” aborting a fetus after a heartbeat has been detected.
That usually occurs about six weeks into pregnancy, which may actually be before a woman knows she is carrying a child. It also could effectively become a nearly total ban on the procedure based on estimates that at least 85% of abortions are performed after that point.
It is that unusual structure of civil enforcement of the statute that resulted in the 5-4 decision of the Supreme Court to allow SB 8 to take effect while other legal challenges make their way through the courts. And that is the first time the justices have given their blessing to such a sweeping restriction since the historic Roe v. Wade decision in 1973 that says states may not restrict the ability of a woman to terminate a pregnancy before a fetus is viable.
Herrod is taking a closer look at what she calls a “novel approach” to restricting abortion.
“The Texas heartbeat law is a road map to what other states can do,” she told Capitol Media Services. “The Texas heartbeat law is worthy of serious consideration by the Arizona Legislature.”
She acknowledged that, strictly speaking, the Supreme Court action was not a final ruling on the constitutionality of the measure. But the fact remains that the justices have allowed the law to take effect.
The high court decision is based on the unusual approach taken by Texas lawmakers.
SB 8 spells out that its ban on post-heartbeat abortions is enforced only by individuals who can sue doctors, friends, associates or others that help a women terminate a pregnancy. It even provides for them to recover their legal fees and offers a $10,000 minimum reward for every successful lawsuit.
Nancy Barto
And it is that approach to the issue that five of the justices of the Supreme Court said guided their decision not to block its enforcement.
In a brief unsigned opinion, the majority said the abortion providers who challenged the law did not properly address the “complex and novel antecedent procedural questions” in the case of having a law enforced not through criminal trials brought by prosecutors but through civil lawsuits that anyone can file. So the justices left the statute intact pending any further challenges to the statute.
That drew dissents from the other four, including an angry reaction from Justice Sonia Sotomayor who called the order “stunning,” particularly given the still-in-effect precedent of Roe v. Wade.
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of the justices have opted to bury their heads in the sand,” she wrote. Sotomayor said the failure of the court to act “rewards tactics and inflicts significant harm on the applicants and on women seeking abortions in Texas.”
Even Chief Justice John Roberts sided with the three more liberal justices, saying he would have enjoined enforcement of the law to let lower courts decide “whether a state can avoid responsibility for its laws” prohibiting abortions after roughly six weeks because it “essentially delegated the enforcement of that prohibition to the populace at large.”
Herrod isn’t the only one paying attention to the ruling and what it could mean in Arizona.
So is Sen. Nancy Barto, R-Phoenix.
She is the sponsor of a new Arizona law which makes it a crime, enforceable by the state, to abort a fetus due to “genetic abnormalities.” That law is set to take effect at the end of this month, though there is a lawsuit challenging its constitutionality.
In this Sept. 1, 2021 file photo, a security guard opens the door to the Whole Women’s Health Clinic in Fort Worth, Texas. Even before a strict abortion ban took effect in Texas this week, clinics in neighboring states were fielding more and more calls from women desperate for options. The Texas law, allowed to stand in a decision Thursday, Sept. 2, 2021 by the U.S. Supreme Court, bans abortions after a fetal heartbeat can be detected, typically around six weeks. (AP Photo/LM Otero)
Barto said she wants to see how this particular approach to banning abortions at six weeks is considered by the courts on its merits. But the senator indicated she is hopeful.
“So far, it’s saving lives,” Barto said of the Texas statute. “And that should encourage everyone who care about protecting life in the womb.”
The ruling, however, concerns Planned Parenthood of Arizona — and not just over the potential to use it as a template for new laws. Organization spokeswoman Murphy Bannerman pointed out that the law Barto already ushered through actually has some of the same elements of civil enforcement as the Texas statute.
For example, she noted, the law does more than make it a crime to perform an abortion knowing that the reason was the genetic abnormality. It also allows the husband of the woman who has such a procedure to file a civil suit on behalf of the unborn child.
And if the women is younger than 18, her parents can sue.
What all that means, Bannerman said, is that those who want to preclude this kind of law in Arizona will have to be vigilant.
“We are asking for people to email their legislators and tell them that you don’t support abortion bans, that you don’t support something similar to SB 8 being enacted here in our state,” she said.
Herrod, however, said while the approach Texas is taking is unique, it is not without precedent, even in places like Arizona. She said there are other circumstances where a private citizen can enforce laws.
“If you walk by a car that’s locked and you see a child that’s inside that car, and it’s in our heat and the child is clearly not going to survive, you’re going to bust open the window and save that child,” Herrod said. “That’s analogous to what Texas is trying to do, that the private citizen is able to protect that child from the abortionist’s hand.”
There was no immediate response to the Supreme Court ruling from Gov. Doug Ducey who has signed every abortion restriction that has reached his desk.
What’s next for SB 8 — and any other similar law enacted here or elsewhere — will be further litigation.
The majority stressed it was not issuing a ruling on whether the Texas law is constitutional. And the justices said they were not limiting “procedurally proper challenges” to it.
“We know this isn’t the end of the road on litigation,” said Herrod. “The pro-abortionists will come up with some other approach to watch this law.”
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