Roe v. Wade has been overturned. What is the law for abortions in Arizona now?
The U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization overturned Roe vs. Wade and allows states to set their own course on abortion laws — so what does that mean for Arizona now?
Uncertainty, at least at first.
Expect an immediate challenge to the state's anti-abortion laws and a direct or implied threat of prosecution for abortion providers, several experts told The Arizona Republic. They pose the most likely scenario as an initial fight to determine which of two anti-abortion laws — one 158 years old and another brand new — will take precedence.
As that question remained unanswered on June 24, Planned Parenthood of Arizona paused all abortions, both medical and surgical. Seven of nine licensed providers in the state immediately halted abortions.
The old law, created in Arizona’s territorial days, is a strict ban on providing or helping to provide an abortion, except to save the mother's life. It calls for a mandatory prison sentence of two to five years for violators.
More: Supreme Court overturns Roe v. Wade, eliminating constitutional right to abortion
Republicans in the state Legislature passed the new anti-abortion law this year; Gov. Doug Ducey signed it into law in March. Scheduled to take effect 90 days after the Legislature adjourns its current session (something that may happen by the end of June), it bans abortions after 15 weeks of pregnancy except if necessary to save the mother’s life. Violating physicians face potential felony charges and loss of their professional licenses.
The state court system, likely the Arizona Supreme Court, will be needed to settle the issue as women seeking abortions and abortion service providers wait for guidance.
Impact still unclear, for now
The U.S. Supreme Court ruling Friday overturned the constitutional right to abortion established with its 1973 Roe v. Wade decision, allowing states to set their own policies.
It also overturns the 1992 Planned Parenthood v. Casey decision that allowed states to set rules based on viability.
"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives," the ruling states.
Before the Supreme Court's ruling, opinions were mixed on which of the two Arizona laws would prevail.
Brittni Thomason, a spokeswoman with the Arizona Attorney General's Office, said June 16 that "once the U.S. Supreme Court provides new clarity or guidelines, we will commence a formal legal analysis for Arizona." The office wouldn't describe what the scope of the analysis would be.
Statements released by Attorney General Mark Brnovich after the ruling emphasized his anti-abortion sentiment.
"Attorneys General have a solemn responsibility to defend the most vulnerable among us, and that’s exactly what we did today," Brnovich wrote. "I look forward to seeing this issue returned to elected representatives where it belongs. As Americans, we believe in the dignity & value of every person."
Brnovich implied that Arizonans would be governed by the new 15-week law set to take effect 90 days after the Legislature ends its current session, likely to happen in the next several days.
"The Arizona Legislature passed an identical law to the one upheld in Dobbs, which will take effect in approximately 90 days," a statement from Brnovich's office on June 24 states.
Brnovich noted that he filed an amicus brief in the Dobbs case and that his office has "been vigorously defending" a law Arizona passed year that bans abortions sought because of "genetic abnormalities" and conveys the same rights other children have to fetuses. He said he expected to prevail in that case because of Friday's decision.
After signing the 15-week abortion ban in March, Ducey told reporters that it — and not the pre-statehood ban — would take effect if the Supreme Court overturned Roe v. Wade. But he has not clarified why he believes that, nor has he responded to requests for an updated comment.
The state Senate's Republican majority, in a Friday announcement, contends that the pre-statehood law is now in effect and will remain so after the 15-week ban takes effect.
The new law is "in addition," to the old one, according to the unsigned statement.
"A physician who violates (the 2022 law) would face felony prosecution, which would be punishable by jail time of two to five years, under ARS 13-3603," it states. "In preparation for this day, Arizona State Senate Republicans this session have worked to secure increased funds for the 50 pregnancy centers in Arizona, as well as to support mothers with pre- and post-natal care."
Asked about the statement, Brnovich's office issued a caveat, noting the legal review the office is conducting.
"We understand this is an important issue for so many people, and they are seeking clarity," the statement said. "However, it is a developing situation for our country and our state. The Attorney General’s Office may be called upon by public officials to provide formal opinions on some of these topics, and I don’t want to get out in front of that process.
"What I can tell you is the Arizona Legislature passed an identical law to the one upheld in Dobbs, which will take effect in approximately 90 days. Our team is actively reviewing the 213-page opinion that was just released this morning."
Representatives of Planned Parenthood of Arizona and the American Civil Liberties Union of Arizona said they expect abortion to remain legal and services to continue as normal until the 15-week ban takes effect this fall.
Arizona abortion law: What you need to know now that Roe v. Wade is overturned
Unless, that is, the state takes action to revive the pre-statehood ban.
In 1973, the Roe v. Wade decision caused the Arizona Court of Appeals to amend and reverse a 2-1 decision it had made a few weeks earlier that declared that the laws banning abortions and advertising of abortion or contraception services were constitutional. But they are still in Arizona statute.
Brittany Fonteno, president and CEO of Planned Parenthood Arizona, Inc., said the group’s legal position is that the 1973 action stops the abortion ban from taking effect, “meaning the state would have to act to lift the injunction” to enforce it.
However, the group ordered a pause on abortions in the wake of the ruling.
"Shameful anti-abortion lawmakers have planned for this very day and done everything they can to create chaos so that Arizonans are confused, scared and unsure how to exercise their rights," Fonteno said. "We are being forced by the Supreme Court and politicians in this state to deny patient care right now. As a result of our state's legal landscape, we are pausing abortion services at Planned Parenthood clinics in Arizona."
Arizona has one of the country’s most “complex legal landscapes” on the aftermath of a Roe reversal, she said.
“The state has to make a decision,” she said. “Right now there are lot of conflicting narratives.”
That’s already creating confusion among patients and physicians, she said.
“We have patients that don’t know that it’s legal — they don’t know what their rights are,” Fonteno said. “Anti-abortion politicians and advocates (are) trying to create confusion so that doctors are scared.”
The group is having “conversations internally” she didn’t want to share about the legal strategies they may take in the courtroom.
Fonteno said that Planned Parenthood doors “will remain open no matter what,” providing birth control, sexually transmitted infection testing, gender-affirming care and other services - which, for now, do not include abortion.
"We have no clinical care because the criminal risk is too high," said Eloisa Lopez, executive director of the Abortion Fund of Arizona and Pro-Choice Arizona.
Cathi Herrod, an attorney and president of the anti-abortion Center for Arizona Policy, said the complete ban on abortions "should be enforceable," but that "it's going to be challenged in court quickly."
Herrod said she believes the 1973 injunction against the ban only enjoins the Pima County attorney and state attorney general from enforcing it.
“It’s another reason why this all will be sorted out by the courts, most likely,” she said.
The lack of clarity could help advocates of legal abortion stop the total ban from taking effect, according to Jen Piatt, a research scholar with Arizona State University's Center for Public Health Law and Policy.
Attorneys arguing against the total ban likely would use a legal theory known as "implied repeal," she said. The 15-week abortion ban Ducey signed this year contains obvious conflicts with the territorial-era law, and a judge could decide that means the old law was repealed by implication, she said.
Andrew Gould, a former state Court of Appeals judge and state Supreme Court justice who retired last year in a bid to run for state attorney general, agreed with Piatt's take.
The new law confuses the issue, containing a provision that explicitly states the pre-statehood law is not repealed. Despite that, "most judges would say that old law was repealed" by the 15-week law, because newer laws typically take precedence when they conflict with old laws, Gould said.
When abortion providers could have assurance that they won't face prison time is another question. That might only happen if the Legislature "expressly states they've repealed it or not," Gould said. "Or, it's going to have to be sorted out in the courts."
What would an abortion ban in Arizona look like? A century of prosecutions, deaths before Roe sheds light
Outcome of fall elections will matter
Marcela Taracena, spokeswoman for the ACLU, said the organization is discussing how to challenge Arizona’s anti-abortion law in court, but also is looking to a wider fight on abortion.
“We plan to work closely with partners to mobilize our community against anti-abortion attacks and demand that candidates take a stance on this issue leading into the 2022 elections,” she said.
The U.S. Supreme Court’s ruling means the November election is more important than ever to both abortion proponents and opponents. Not only would Democratic lawmakers work to try to preserve abortion rights, but enforcing any abortion ban also requires a willing prosecutor. The lone Democrat running for state attorney general, attorney Kris Mayes, said she presents a "stark difference" compared with the six GOP candidates running for the office, one of whom she'll face in November.
"As attorney general, we will not prosecute women or doctors in the state of Arizona for abortion, period, even when Roe falls," she said.
Roe v. Wade is based on a woman's implied right to privacy in the U.S. Constitution, but the state Constitution expressly grants "strong and explicit" right to privacy that she believes contradicts the pre-statehood ban, she said.
"We're going to enforce the Constitution, which I believe supersedes both (the old and new anti-abortion laws)," Mayes said.
Julie Gunnigle, a Democrat running against Republican appointee Rachel Mitchell for Maricopa County Attorney, has also said she wouldn't prosecute anyone for providing abortions.
That's already the stance in Pima County. Following the new Supreme Court opinion, County Attorney Laura Conover posted on social media that "S. AZ took action, not waiting for today's opinion. Our city police revised their general orders, my sheriff declared he is not the abortion police, & I have done everything possible to reassure our community that the health & safety of ALL remains my No. 1 priority."
She had already announced publicly that she "will do everything in our power to ensure that no person seeking or assisting in an abortion will spend a night in jail."
Direct voter enactment of legal abortions in Arizona also remains a remote possibility this year.
Abortion-rights advocates launched a citizens initiative in May and are collecting voter signatures. They would have to obtain 356,467 valid voter signatures by July 7, but there's no indication they'll get close to that with their late start.
Voters won't get another chance to change the law at the ballot box until 2024.
More attacks on abortion expected
While the total and 15-week ban laws are the main focus, other Arizona statutes could play a role in a post-Roe world.
An anti-abortion law from a decade ago sets a 20-week limit on abortions. It was signed into law by then-Gov. Jan Brewer in 2012. Herrod said that won’t come into play because it was ruled unconstitutional by the 9th U.S. Circuit Court of Appeals and rejected by the U.S. Supreme Court, and thus there is no pending litigation against it.
What could open another legal front is the question of whether fetuses have the same rights as all other children.
A law signed by Ducey in 2021 full citizen rights to fetuses in addition to banning abortions sought because of "genetic abnormalities."
That law was challenged by several pro-choice groups and is on hold following a stay by a federal judge in December, who noted its conflict with Roe v. Wade and Planned Parenthood v. Casey, the two cases dismantled by the Supreme Court ruling. The stay was extended and upheld by the 9th Circuit and the U.S. Supreme Court, which turned down a request by Arizona Attorney General Mark Brnovich to let the law take effect immediately.
With Roe v. Wade overruled, the basis for the stay has eroded. And since the 2021 law grants the fetus all the rights and privileges of any other child, that would necessarily prevent an abortion, Herrod said.
Assuming the territorial law won't go into effect, Fonteno said she expects the Arizona Legislature to take more action against abortion.
“They won’t be satisfied with the 15-week ban,” she said.
Possible chilling effect for doctors
Until courts decide the impact on Arizona, abortion providers will temporarily close up shop, predicted Paul Bender, who teaches constitutional law at ASU.
"I don’t think you’d be able to find a doctor to give ... a legal abortion in Arizona the day Roe v. Wade is overruled," Bender said. "I think a doctor would be in peril to do an abortion immediately after."
Because of the old law’s mandatory prison time that some would argue is still in effect, overturning Roe v. Wade "would scare doctors from doing abortions in Arizona right away," he said.
Legal abortions wouldn't end in Arizona "if doctors are willing to take the chance," he said, "but most doctors will not want to take that chance."
Will Humble, executive director of the Arizona Public Health Association, echoed Bender’s assertion.
“You will see the clinics close,” he said. “I think you would definitely see an immediate ending of those services.”
How long they would stay closed may depend on what the state Supreme Court decides, he said, adding that would expect the court to rule quickly.
The Arizona Medical Association, which officially supports keeping abortion services legal, is "very concerned" about the risk for physicians if the state reverted to the pre-statehood ban, said the group's president, Dr. Jennifer Hartmark-Hill.
"While it is probable that many physicians would cease providing pregnancy termination services out of fear of imprisonment, it would ultimately be up to each physician's sole discretion," Hartmark-Hill said.
The law's enforcement would present a "significant threat to the health and safety of patients," she added.
An average of 35 women a day received abortions in 2020, state Department of Health Services statistics show. About 95% of abortions in Arizona that year occurred by or before 15 weeks of pregnancy.
Republic reporter Stephanie Innes contributed to this story.
Reach the reporter at [email protected] or 480-276-3237. Follow him on Twitter @raystern.
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This article originally appeared on Arizona Republic: What are Arizona's abortion laws after Roe v. Wade repeal?
