Where abortion stands now in Arizona
Where abortion stands now in Arizona
Here's your cheatsheet on what the Dobbs ruling means in Arizona.
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On Friday morning, the U.S. Supreme Court overturned the Roe v. Wade precedent on abortion, effectively allowing states to set abortion laws as they see fit.
In Arizona, access to abortion is now far more limited.
But just how limited is not yet clear. Still, with legal uncertainty over their heads, abortion providers throughout the state suspended abortions Friday.
Here’s your roundup of all the abortion news threads in one place. Please share this cheatsheet with people you think may want a rundown of the Arizona abortion news threads, all in one place, to keep up with this high-speed news cycle.
The basics
You can find the ruling on the Dobbs v. Jackson Women’s Health Organization, the Mississippi case the court decided on, here. In Arizona, there are three main laws we’re looking at. You can find Arizona’s 15-week abortion law, not yet in effect, here. You can see Arizona’s fetal personhood law here. Arizona’s pre-statehood abortion ban, still on the books but unforceable for decades, can be found here. A rundown of all Arizona laws related to abortion can be found here.
What the law says
Abortion will be more restricted going forward in Arizona than it is now. Arizona doesn’t have a “trigger” law, like some states do. Instead, we’re waiting to hear which will become the prevailing state law: a pre-Roe outright ban on abortions, or a ban after 15 weeks (which goes into effect later this year).
The 15-week ban includes exceptions for “medical emergencies” and requires providers to submit forms to the state detailing the medical emergency. If doctors violate the ban, they could be charged with a Class 6 felony and lose their medical license. The person getting an abortion would not be prosecuted. The pre-statehood ban allows for exceptions if an abortion is necessary to save a mother’s life. It doesn’t punish people getting abortions, but would carry penalties for providers of two to five years in prison. Neither includes exceptions for rape or incest.
The fetal personhood law is broad and ambiguous: It grants an “unborn child at every stage of development all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.”
Gov. Doug Ducey has said the total ban is superseded by the new 15-week law, but the plain language of the bill explicitly says it doesn’t repeal other parts of law. The Arizona Senate GOP put out a press release saying they believe the pre-Roe ban takes over.
Arizona Attorney General Mark Brnovich has not clarified what the enforceable state laws now are. Brittni Thomason, a spokesperson for the AG’s office, said in a statement Friday that this was a “developing situation” that the office is still reviewing.
“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,” Thomason said. “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.”
Several sources pointed to an injunction in a 1973 case that’s still in place, which prevents the pre-statehood ban from being enforced. That injunction would likely need to be lifted before an outright abortion ban could be enforced. It would most likely be the state that would go to court to request the injunction in that case be lifted, though no action has yet been taken to do this.
On June 29, Brnovich said his office believes the pre-statehood ban is not superseded by the 15-week ban. He plans to ask the court to lift the injunction in the 1973 case.
The Arizona Department of Health Services inspects and licenses abortions. The department has so far not informed clinics what they should do.
Abortion providers stop doing abortions
While the laws aren’t clear, the confusion effectively stopped legal abortion access in Arizona anyway.
Clinics started putting notices up on their websites almost immediately after the ruling on Friday, noting they were pausing abortions until they understood their rights.
“Our state is obligated to tell us what law is currently being enforced. And the confusion is part of the point and it’s a chilling effect, which is unfortunate for us as providers and for the people who need our help,” Dr. DeShawn Taylor, the owner of Desert Star Family Planning, which provides abortions, told us on Sunday.
About 13,200 Arizonans received abortions in 2020, the most recent year of data available.
Taylor said her clinic started telling patients in recent weeks that their care could be interrupted because of the expected ruling. She moved patients up from July to June.
On Friday morning, the clinic’s receptionist called people who were scheduled for that day and the rest of the month to let them know they weren’t able to see them, Taylor said. Then, after making “distressing” calls all day, the office turned the phones off for the afternoon.
Taylor had some patients who needed surgical abortions who were scheduled for Tuesday who were between 13 and 19 weeks who she won’t be able to help. The clinic directed them that they could get care out of state and let them know abortion funds were available to help with the cost.
The laws carry criminal penalties for providers, so they operated with an “abundance of caution,” Taylor said.
“None of us went to medical school to be jailed for providing health care,” she said.
Who will be suing?
Given the conflicting views on which law takes precedent, it’s likely the courts will decide what happens next.
As we mentioned, the 1973 injunction is still in place, so look for court action there to try to remove that and make abortion bans enforceable.
The ACLU, joined with abortion rights groups and doctors, filed an emergency motion this weekend over the fetal personhood law, saying it was unclear how the law will be interpreted and that it was “unconstitutionally vague.”
The motion seeks clarity on whether abortion providers could be charged under the law, noting that two doctors in the case “accordingly stopped providing abortion care in Arizona” over the uncertainty. The group originally challenged this law last year, and a judge blocked a part of the law pertaining to abortions for fetuses with genetic abnormalities, but didn’t block the personhood part of the law, the Republic’s Ray Stern notes.
“Until the court acts, the uncertainty in the law will cause providers to suspend abortion services and could put the lives of pregnant people in Arizona at risk,” Jared Keenan, legal director for the ACLU of Arizona, said in a statement.
Will people be prosecuted?
Once it becomes clear which laws are in effect, enforcement will fall to prosecutors.
That puts the role of county attorneys and the state attorney general in the spotlight. In Maricopa County, Democratic candidate Julie Gunnigle made her position on prosecutions for abortion crystal clear: She won’t enforce them. Appointed County Attorney Rachel Mitchell, a Republican, said her office would use the “ethical charging standard” of whether a charge is likely to result in conviction when deciding whether to prosecute a case.
Pima County Attorney Laura Conover, a Democrat, previously said 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.”
People getting abortions will not be prosecuted under the 15-week or outright bans, though it’s not clear how the fetal personhood could play out on that front.
The six Republican candidates for Arizona attorney general have indicated they will enforce state laws on abortion. The Democratic candidate, Kris Mayes, put out a 12-point plan generally saying she would not prosecute providers who provide abortion or people who get abortions.
What’s the political strategy on the left in Arizona?
As we mentioned in May, the most likely route to ensure access to abortion in Arizona is a citizen’s initiative, which would require supporters to gather hundreds of thousands of signatures from voters and mount a campaign to win at the ballot.
The last time Arizonans were asked about abortion on their ballots was 1992, when an initiative sought to ban abortion entirely, with limited exceptions. It failed spectacularly: More than 68% of voters voted against it.
The deadline for ballot measure signatures to get on this November’s ballot is July 7, which makes for a very fast turnaround for a measure this year. Some set their sights on 2024, but a group called Arizonans for Reproductive Freedom filed an initiative in May and started gathering signatures. The measure would amend the Arizona Constitution to provide a “fundamental right to reproductive freedom” and access to abortions until the point that a fetus can survive outside the womb.
The group needs to gather 356,467 valid signatures by July 7, and the signatures would likely be subject to lawsuits over validity if they do turn in enough by the deadline.
Arizonans for Reproductive Freedom treasurer Shasta McManus told us Friday that the group has more than 50 petition depots and hundreds of volunteers gathering signatures throughout the state, making it “almost impossible” to track how many signatures they have now. The group lists places to find the petition and ways to volunteer on its website.
“Everybody is moving at full speed,” McManus said. “Do I think that we’re close? I think after this coming week, we’re going to be darn close.”
With protests across the state after the ruling, this weekend was likely the biggest few days of the ballot measure campaign.
Progressive lobbyist Marilyn Rodriguez shared a strategy memo with us that details routes for protecting abortion access in Arizona. A constitutional ballot measure campaign compressed into a short timeframe like this would cost more than $26 million, largely spent on paid signature-gathering, she estimated.
In the short-term, the 15-week ban could be referred to the ballot, a process where people who oppose a law passed by the Legislature can gather signatures to ask voters whether to keep the law in place. A referendum needs 118,823 valid signatures within 90 days of the Legislature adjourning sine die and would cost significantly less. Supporting the Arizona Fair Elections Act, an effort by groups on the left to improve access to voting and protect citizens’ initiatives, should also be part of the plan, she wrote.
Across Arizona and the country, people took to the streets to protest the ruling Friday. Protests at the Arizona Capitol on Friday night led police to tear gas the crowd, some of whom were banging on the doors of the Senate, where lawmakers were finishing the legislative session.
On Saturday, police put up fences around the Capitol, and another protest ended in arrests, 12News reported.
What will cities do?
The Tucson City Council directed its police department not to make arrests over abortion bans. Instead, the department will give information to prosecutors, who will then decide whether to file charges, and to the state health department, the Arizona Daily Star’s Nicole Ludden reported earlier this month.
After the decision on Friday, Phoenix Mayor Kate Gallego said she and a majority of the city council have “no interest in using city resources to prevent women from accessing health care.”
Gallego’s office told us the mayor is interested in continuing a conversation with the city council about what to do next. Any action would require a vote of the whole council, which is about to break for the summer.
“The Phoenix Police department constantly faces decisions about how to deploy its resources. The Mayor believes it is not in the city's best interests to use those resources to prosecute doctors,” Jeanine L'Ecuyer, Gallego’s communications director, told us via email.
Phoenix City Councilwoman Yassamin Ansari said in a press release that she wants to see the city put policies in place that prevents criminalization of people getting abortions, providers and people who assist those getting abortions. She also said she wants to see the city allocate money for contraception and transportation to states with legal abortion.
What about the politicians?
The Legislature adjourned for the session without taking additional action on abortion, though some GOP members wanted to.
Arizona Republican Rep. Jacqueline Parker said on Twitter that she and GOP Rep. Jake Hoffman tried to introduce a late bill that would clarify the conflicting state laws, but they were “all but tackled to the ground by the other House Republicans” and weren’t allowed to talk about the Dobbs decision on the floor.
The Republic has a roundup of all the comments politicians and candidates have made about the decision, which largely fall as you’d expect, along partisan lines.
Congress could act by legalizing abortion. Democrats control the U.S. House, Senate and presidency. But it would require eliminating the filibuster in the Senate, and Democratic U.S. Sen. Kyrsten Sinema previously said in a statement that the filibuster was “more important now than ever.” On Friday, she said she would “continue working with anyone to protect women’s ability to make decisions about their futures,” but did not mention the filibuster.
Are employers offering help?
Companies with employees in states with restricted or illegal abortion announced programs to reimburse travel for abortion care.
We reached out to a few major companies in Arizona to ask what they were offering their employees. We heard back from Intel, which said the company’s health care options cover abortion “where permitted” and that Intel will “continue to provide resources for those who need to travel for safe, timely healthcare.”
The Republic rounded up other big employers that have made statements about the travel benefits they’ll provide employees.
State employees on the state’s insurance plan can access abortion “only in cases of life endangerment or severely compromised health,” according to the Guttmacher Institute, a pro-abortion rights reproductive health research group. And people who get insurance in the state’s health insurance exchanges face similar restrictions, as do those who get coverage through the state’s Medicaid program.
What’s next for the anti-abortion movement here?
The group behind much of the anti-abortion legislation in Arizona, the Center for Arizona Policy, anticipates “a number of lawsuits” over abortion access, its president, Cathi Herrod, told us.
Now that women who do not want or cannot care for children will be forced to carry to term, Herrod said lawmakers could focus on improvements to Arizona’s social safety net. Arizona has some of the country’s weakest programs, with very limited funds offered to poor families and low amounts for programs like unemployment insurance.
But Herrod pointed to some increased funding for pregnant women and families approved by the Legislature this year, like expanded post-partum care, increased funding for OB/GYNs who treat pregnant women on the state’s Medicaid program and more funding for healthy families programs, which the Arizona Senate GOP also noted in a press release celebrating the Roe reversal.
“I think that there will be an awareness of the need to support women, not that there hasn't been the need before,” Herrod said.
In a concurring opinion in the Dobbs ruling, U.S. Supreme Court Justice Clarence Thomas noted three other precedents related to contraception access and same-sex relationships as ripe for reconsideration by the high court.
But Herrod, one of the main lobbyists for anti-LGBT laws in Arizona, said she felt Thomas writing alone on the concurrence distinguished that the other justices didn’t agree that those cases should be revisited.
As to whether she wanted to revisit those cases or seek state laws that could be appealed up the court ladder on same-sex marriage or contraception, she said, “I don’t have any of those plans at this time.”
If travel to nearby states is needed, where is it legal?
Every state we border except Utah provides more access to abortion. Of course, this travel requires money, which abortion funds like the Abortion Fund of Arizona help with for those who can’t afford it.
People needing abortions could travel to California, Nevada, Colorado and New Mexico to get care — and to some extent, they already have been, given Arizona’s restrictions on abortions in place before the Dobbs ruling. Check out this map of abortion access by state by The 19th to see where each state stands now.
“We already knew that people were self-managing their abortions, because I was seeing the people in the clinic when it didn't work,” Taylor, the abortion provider, told us. “So those are just probably the tip of the iceberg. Most of the time it was probably working.”
Some parts of Mexico also provide more access to abortion now, the Arizona Luminaria notes, after the Mexican Supreme Court decriminalized abortions last year.
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