Ever since the territorial days, Arizona has had a history of severely restricting women’s reproductive freedom. From territorial era laws passed in 1864 to the laws restricting both abortion and contraception passed in 1901 (called the Comstock Laws), Arizona lawmakers and governors have actively sought to restrict women’s reproductive rights.
When the U.S. Supreme Court announced their decisions in the 1960s and 1970s (Griswald v Connecticut & Roe v Wade) Arizona finally began to allow more reproductive freedom (including the right to have an abortion), but only because the courts had forced their hand.
Arizona law regarding abortion care was again thrown into flux in the summer of 2022 when the U.S. Supreme Court overturned Roe v. Wade once again allowing states to decide how they regulate or prohibit abortion care. Throughout the summer of 2022 it was unclear whether and what kind of abortion care was legal in Arizona.
Arizona had laws on the books from the territorial days limiting abortion to only those cases when it was necessary to save to life of the patient, to a new 2022 law that generally allowed abortions as long as it was before 15 weeks’ gestation.
That confusion was resolved on September 23, 2022, when Pima County Superior Court Judge Kellie Johnson ordered the lifting of the injunction in the Nelson v. PP case. In her decision she dismissed the relevance of the new law limiting abortions to those at less than 15 weeks of gestation because the state legislature included in the session law that the 15-week gestation age limitation does not “… repeal by implication or otherwise Section 13-3603 or any other applicable state law regulating or restricting abortion.”
September 23, 2022, any clinician in Arizona who performs an abortion (whether medication or surgical) that is not necessary to save the life of the patient can be charged with and convicted of a violation of ARS 13-3603 and if found guilty, punished with between 2 and 5 years in the state penitentiary.
Planned Parenthood of Arizona is likely to appeal the lifting of the injunction on the 1973 ruling to the Arizona Supreme Court, where is stands little chance of being overturned. The Arizona Supreme Court was recently increased in size from 5 to 7 justices, giving Governor Douglas A. Ducey an opportunity to fill the court with his preferred appointees. Governor Ducey is a well-established foe of abortion services and presumably ensured that his appointees share is values in that regard.
Unless the election in November 2022 drastically changes the makeup of the Arizona State Legislature and the Democratic candidate for Governor (Katie Hobbs) is elected, abortion services will remain illegal to perform in Arizona through at least 2024 with no exceptions unless the clinician establishes that the procedure is necessary to save the life of the patient.
A voter initiative changing the Arizona Constitution to guarantee the right to abortion services will likely be initiated in 2024. If the effort can collect the more than 300,000 valid signatures needed to qualify for the ballot, and if the initiative survives the inevitable legal challenges to keep it off the ballot, Arizona voters will have an opportunity to again make abortion services legal beginning in late 2024.
At a practical level, Arizona women will be forced to seek abortion services in neighboring states like California, Nevada, New Mexico, or Colorado, all of which allow abortion services. Several resources exist to help women that are living in states with restrictive abortion laws such as I need an abortion. However, many women who can’t afford to or are unable to travel will be forced into motherhood in a state with little commitment to safety net services.