Now that the U.S. Supreme Court removed constitutional protections for abortion rights the question becomes… what’s the law of the land in Arizona?
The answer to that question hinged on whether SB1164 (restricting abortions to the first 15 weeks’ gestation) is the law of the land or whether the territorial-era law [ARS 13-3603] takes precedence as well as whether ARS 13-3603 is found to be unconstitutional on grounds other than those covered in the Dobbs decision.
During the summer of 2022 Attorney General Brnovich moved to begin implementation of the abortion ban in ARS 13-3603 by filing a motion in Pima County Superior Court to remove the injunction from the Nelson v. Planned Parenthood Center of Tucson case.
On September 22, 2022, 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.”
By lifting the injunction, Judge Johnson turned the clock back to January 1973 when abortions were illegal to perform “… unless it is necessary to save her (the patient’s) life.”
From September 23 to December 30, 2022, any clinician in Arizona who performed an abortion (whether medication or surgical) that is not necessary to save the life of the patient could have been an 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 appealed to the Superior Court ruling, and on December 30, 2022, held that doctors can’t be prosecuted for performing abortions because other Arizona laws passed over the years allow them to perform the procedure. See the appellate court ruling.
The ruling from the three-member Court of Appeals panel temporarily cleared up two months of controversy, and abortion care providers were again allowed to provide abortion care up to 15 weeks of gestation (beginning December 30, 2022).
The intervening plaintiffs in the case (the Alliance Defending Freedom & Yavapai County Attorney Dennis McGrane) appealed the appellate court ruling to the Arizona Supreme Court, who agreed to hear the case, with oral arguments on December 12, 2023. Meet The Justices who will decide the case (note that Justice Montgomery has recused himself because of his historic actions and statements opposing abortion care).
Note: Attorney General Mayes and Pima County Attorney Conover are not defending the territorial-era ban, which is why the Alliance Defending Freedom and McGrane are called ‘intervenor plaintiffs.
A decision by the Arizona Supreme Court could take weeks or even months.
The AZ Supreme Court could uphold the Court of Appeals ruling that abortion is legal up to 15 weeks, they could agree with the Superior Court ruling that abortion is illegal except when the mother’s life is in danger, or they could come up with some other hybrid ruling.
In the meantime, a voter initiative changing the Arizona Constitution guaranteeing the right to abortion services is gathering signatures for the 2024 ballot. The signature gathering effort is being organized by Arizona for Abortion Access. The campaign must collect 383,923 valid signatures from Arizona voters by July 3, 2024. If the organizers are able to collect the required valid signatures, and if the initiative survives the inevitable legal challenges to keep it off the ballot, Arizona voters would have an opportunity make abortion care (up to the point of viability) a constitutional right in Arizona regardless of how the Arizona Supreme Court rules in the coming weeks.
Note: The Arizona Supreme Court may decide abortion is illegal except to save the life of the mother in the coming weeks. If that were to happen, Arizona women would again be forced to seek abortion care in neighboring states like California, Nevada, New Mexico, or Colorado, all of which allow abortion services.