By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona voters will decide next year whether to enshrine the right to abortion in the state constitution.
And the 13-point victory in Ohio Tuesday for a nearly identical measure suggests that the messages used there unsuccessfully urging defeat may prove no more convincing here.
Ohio is generally considered a more Republican state, what with the top state offices and both houses of the Legislature in GOP hands. In Arizona, Republicans control just two of the five top offices and the GOP edge at the Capitol is just two votes in both the House and Senate.
More significant is that the main argument used by abortion foes in Ohio failed.
Gov. Mike DeWine argued that Issue 1, as it was known there, "goes much too far.''
That is based on language which says that the state cannot ban abortions after fetal viability -- generally considered between 22 and 24 weeks -- if it is the "professional judgment'' of the treating physician the procedure is "necessary to protect the pregnant patient's life or health.''
"It allows abortion at any point in the pregnancy,'' DeWine said in the campaign, with similar arguments offered -- unsuccessfully -- by other foes of Issue 1.
"A majority of people in Ohio, if you ask them 'Do you believe abortion should be able to occur late, late into the term,' most of them are going to say 'no,' '' DeWine said. That proved not to be true.
That's the same reasoning being offered in Arizona by Cathi Herrod, president of Center for Arizona Policy Action -- the political arm of the anti-abortion CAP -- which is emerging as the main foe of the initiative here.
She cited a provision in the Arizona measure, nearly identical to what Ohio voters approved, which prohibits the state from denying, restricting or interfering with an abortion that "in the good faith judgment of a treating health care professional is necessary to protect the life or physical or mental health of the pregnant individual.''
Herrod said that could prove "too broad,'' making the same argument as DeWine that it could legalize abortion right up until childbirth.
And there's something else.
Ohio already had less restrictive laws than those in Arizona, allowing abortions through the 22nd week of pregnancy.
In Arizona, by contrast, the current limit is 15 weeks.
And it could be even less by the time of the 2024 election: The Arizona Supreme Court will decide early next year whether to allow enforcement of a territorial-era law that bans the procedure except to save the life of the mother.
It wasn't just the voters in Ohio who acted Tuesday to protect abortion rights, becoming the seventh state to do that since the U.S. Supreme Court in 2022 overturned Roe v. Wade, leaving the question up to each state.
Abortion also was a factor in Virginia where voters flipped control of the General Assembly from Republican to Democrat and preserved a Democrat majority in the Senate. That effectively blocked Republican Gov. Glenn Youngkin from advancing his plan to ban abortion after 15 weeks.
Herrod, however, remains convinced that the measure, if it makes the ballot here, can be defeated.
"Arizona is not Ohio and it is not Michigan,'' she said, the latter referring to a 2022 vote in that state to codify reproductive rights including access to abortion.
And if the argument about abortion up until birth isn't working, Herrod already has several others about what she says would be the effects if the measure is approved here.
"It removes reasonable safety standards for abortion clinics, eliminates the required medical doctor,'' she said. "It doesn't take women's health seriously but gives very broad leeway to who can provide abortions.''
Some of that is based on language in the proposed Arizona amendment that says the state cannot deny, restrict or interfere with the "fundamental right to abortion'' unless it is "justified by a compelling state interest that is achieved by the least restrictive means.''
That could bring into question, for example, a 2009 Arizona law, pushed by Herrod's organization, to eliminate what had been the ability of specially trained nurse practitioners to perform abortions. Whether that would be voided if the amendment were to pass here likely would have to be litigated.
And Herrod has one other argument about the negative effects of what is being proposed here.
"It shuts out mothers and fathers when their daughter needs them most,'' she said.
That is based on existing Arizona law that requires a minor to get parental consent before terminating a pregnancy. There is a "judicial bypass'' work-around which permits the procedure if the minor -- presumably with the help of an adult -- gets a judge to give the go-ahead.
DeWine, arguing against Issue 1, made the same arguments.
"It threatens the parental consent law in Ohio,'' he said. But DeWine also said that question of whether the amendment overrides the law will have to be resolved in the courts.
That's also the same answer that came Wednesday from Jodi Liggett, senior advisor for NARAL Arizona which is at the forefront of the initiative here, about how the initiative might affect parental consent laws.
"I think it's a bit of an open question,'' she said. Ditto, Liggett said, of what kinds of existing laws governing when and where abortions can remain and which would fall if the Arizona measure is approved.
"My guess is a lot of those restrictions have to be litigated,'' she said.
But Liggett said she and supporters remain convinced that what is in the proposal is what a majority of Arizonans want.
"Voters in Ohio sent a pretty clear message,'' she said.
"They think its fine that people have a right to an abortion,'' Liggett continued. "And I think people who believe that now realize that they're in the majority.''
Liggett did not dispute that the measure could be interpreted to permit abortion at any time up until childbirth. But she said that language was necessary.
"It's pretty hard to write a law that would take into account every dreadful situation you can imagine,'' Liggett said. "You're going to miss something.''
And she said some people might be "uncomfortable thinking it through.'' But she said the bottom line is the question of who should be in charge in those situations: the woman or the government.
What she also says is people are "really fatigued'' with the perennial efforts pushed by CAP and Herrod to enact new restrictions on the procedure.
"We have to have this back-and-forth every session,'' Liggett said, with Herrod advancing arguments for things like a 24-hour waiting period and requiring that women be shown an ultrasound of the fetus ahead of an abortion. "They would like to settle this once and for all.''
Then there's the X factor: the case pending at the Arizona Supreme Court. The justices have to decide whether the U.S. Supreme Court decision overturning Roe v. Wade resurrected the territorial-era near ban on the procedure or whether a 2022 law allowing doctors to terminate pregnancies through 15 weeks of pregnancy takes precedence.
That, in turn, raises the question of whether voters next year would be less likely to support a constitutional amendment protecting abortion rights if the justices uphold the 15-week law. Such a decision would leave most abortions legal: The most recent show just 824 of 13,896 abortions performed in 2021 done at 16 weeks or beyond, about 5.9%.
Liggett, however, said the 15-week ban "is pretty awful, too.''
"There are practically zero exceptions,'' she said, with abortions allowed only if the mother's life is in danger.
"So one's almost as bad as the other,'' said Liggett. And she said for voters "it's coming back to that core question, which is who do I want making these decisions.''
Herrod had no immediate comment on how the upcoming Supreme Court ruling might affect the initiative.
All this presumes that the issue gets to the 2024 ballot.
Backers have to gather a minimum of 383,923 valid signatures on petitions by July 3 to put the question to voters. But, given the number of signatures that tend to get disqualified, that more realistically means getting 500,000 registered voters to sign.
Liggett said Wednesday she did not have current numbers but said the signatures appear to be coming in according to "benchmarks.''
"Our professional collection started several weeks ago,'' she said."And we've been going a little longer than that with the volunteer signatures.''
And all that comes with a price tag: Liggett estimates that the signature-gathering process and running an actual campaign will cost $50 million.
There are no final numbers for the Ohio campaign. But reports filed through mid-October showed Ohioans United for Reproductive Rights had raised more than $39.2 million and spent $26.2 million.
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