By Howard Fischer
Capitol Media Services
PHOENIX -- Women in the United States have no constitutional right to terminate a pregnancy, the U.S. Supreme Court ruled Friday, bringing an immediate -- if not permanent -- end to legal abortion in Arizona.
In an extensive opinion, Justice Samuel Alito, writing for the majority, said the historic 1973 Roe v. Wade decision was built on the premise there is an inherent right of privacy in the U.S. Constitution that precludes states from criminalizing a woman's decision to abort a fetus and a medical provider's actions to help her. But he said there was -- and is -- no basis for that conclusion.
"Abortion presents a profound moral question,'' Alito wrote.
"The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,'' he continued, a right that Roe and subsequent rulings from the court took from them. "We now overrule those decisions and return that authority to the people and their elected representatives.''
The move resulted in Planned Parenthood Arizona on Friday halting all abortion services.
"We are working diligently with our team of attorneys to understand Arizona's tangled web of conflicting laws so we can ensure our patients know what their rights are and how to access legal abortion,'' said Brittany Fonteno, the organization's president and CEO. And, for the moment, she said Planned Parenthood will not perform abortions even in cases to save the life of the mother even though that is allowed under the pre-1973 Arizona law, the one that has not been enforced since the Roe decision.
Family Planning Associates which provides abortions in Phoenix also said it is suspending services "while we assess the continued legality of abortion in Arizona.''
But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said there is nothing to study. She Friday's decision immediately breathes new life into that territorial-era law that makes it a crime for doctors to assist in a "miscarriage'' unless it is done to save the life of the mother.
The law, which has no exception for rape or incest, carries a penalty of from two to five years in state prison.
In 2020, the most recent year for which data is available, there were 13,186 abortions performed.
Herrod said Friday's ruling frees prosecutors to start bringing cases immediately.
Whether prosecutors will act -- and when -- remains unclear.
Maricopa County Attorney Rachel Mitchell said if a case is submitted her office will review it to determine if there is a "reasonable likelihood of conviction.
"There undoubtedly will be legal challenges to the laws in Arizona,'' Mitchell said in a prepared statement. "This important legal review will take time and any such rulings will guide my decision-making on these matters.''
Pima County Attorney Laura Conover, who previously vowed to do what she can "to ensure that no person seeking or assisting in abortion will spend a night in jail,'' would not answer questions about whether her office would begin processing complaints.
And even Herrod said there are legal questions whether Attorney General Mark Brnovich, who filed a brief with the justices urging them to overturn Roe, has jurisdiction to enforce the law.
Friday's ruling drew a stinging dissent from Justice Stephen Breyer who said the ruling discards the balance that Roe and subsequent rulings made which concluded that, prior to viability, states cannot impose a "substantial obstacle'' on a woman's right to elect the procedure.
"It says that from the very moment of fertilization, a woman has not rights to speak of,'' he wrote for himself and Justices Sonia Sotomayor and Elena Kagan. "A state can force her to bring a pregnancy to term, even at the steepest personal and familial costs.''
And Breyer pointed out that some states have laws with no exception for cases of rape or incest.
"Under those laws, a woman will have to bear her rapist's child or a young girl her father's -- no matter if doing so will destroy her life,'' he said.
Herrod said that Friday's ruling will do more than prevent women from getting abortions in Arizona. She contends it will allow the state to enforce another law on the books which prevents the delivery of medications designed to induce an abortion directly to women in Arizona, even from other states or countries -- and even if no Arizona doctor is involved.
"If abortion is not legal in this state, then no method of abortion in this state,'' Herrod said.
That, however, may get a fight from the Biden administration.
On Friday the president said he was directing the Department of Health and Human Services to ensure these medications, which have been approved by the Food and Drug Administration, would be available to the "fullest extent possible,'' though he did not spell out what that entails.
Less clear, Herrod said, is the future of available of Plan B, also known as the "morning-after pill.''
This over-the-counter medication, taken within days of unprotected sex, can prevent a woman from ovulating. But Herrod acknowledge it also can work as an "abortifacient,'' preventing a fertilized egg from implanting in the uterus.
"That is a concern,'' she said. "That is another one of those kind of legal uncertainties that will be determined in the days ahead.''
One thing Herrod said Arizona could not ban, though, is the ability of women, denied an abortion in Arizona, from traveling to other states where the procedure remains legal.
The Center for Reproductive Rights says the California Supreme Court recognized the legal right to abortion in 1969, four years before Roe.
Nevada voters approved a measure in 1990 protecting the legal right to abortion. And other states ranging from Washington to New York have statutes allowing women to terminate pregnancies.
There's another complicating factor in Arizona.
Earlier this year the legislature approved a measure sponsored by Sen. Nancy Barto, R-Phoenix, to outlaw abortion after 15 weeks of pregnancy. That was modeled after the Mississippi law that became the basis for the U.S. Supreme Court to take another look at Roe.
That law will take effect 90 days after the end of the current legislative session, meaning likely in late September. And Gov. Doug Ducey said that, as far as he's concerned, on the effective date it will supersede the pre-1973 law.
"This law was signed this year,'' he told Capitol Media Services earlier this year. "I think that the law that you signed in 2022 supersedes 1973.''
Barto disagreed, pointing out that the bill Ducey signed actually spells out that it does not repeal the pre-Roe law.
"It'll be the courts that determine this situation and not our governor or any other person with a differing opinion,'' she said.
There were 636 abortions beyond 15 weeks performed in Arizona in 2020.
There's another factor that could determine the right of women in Arizona.
The state constitution, unlike its federal counterpart, has a provision specifically guaranteeing a "right to privacy.'' Several lawyers have said that provides a basis for keeping abortion legal.
But Herrod, who is an attorney, said she doubts justices here will buy that argument. And there's also the fact that abortion was illegal when the Arizona Constitution and that right to privacy was approved in 1912.
There is currently a petition drive in Arizona to put a measure on the November ballot to protect abortion rights here and overrule the pre-1973 law.
The initiative would put a "right to reproductive freedom'' in the Arizona Constitution, covering all matters relating to pregnancy.
It would bar state and local governments from interfering with that right, which would range from contraception to elective termination of a pre-viable fetus, defined as one with a reasonable chance of surviving outside the womb with or without artificial support. And it would allow abortion at any stage of pregnancy "if necessary to preserve the individual's health or life.''
Backers have an uphill fight.
They need at least 356,467 valid signatures on petitions by July 7 to just put the measure on the November ballot. And they did not launch the drive until the middle of last month, after the Roe decision was leaked.
Strictly speaking, Friday's ruling affect only abortion rights. But Justice Clarence Thomas said that the court should now reconsider other rulings which were based on issues of due process rights, including whether states can deny gays the right to marry, prohibit individuals from obtaining contraceptives, and making it illegal for two people of the same sex to engage in sexual conduct.
In writing Friday's decision, Alito said there is no historic basis for a belief that abortion was a protected right. He cited a series of state laws banning the practice, including the one from Arizona that goes back to 1865.
And he criticized the very essence of Roe which drew a distinction between the right of a woman to terminate a pregnancy depending on whether the fetus was viable outside the womb, something that occurs between somewhere between 22 and 24 weeks.
"This arbitrary line has not found much support among philosophers and ethicists who have attempted to justify a right to abortion,'' Alito wrote. And he said viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus, such as the state of neonatal care.
"Due to the development of new equipment and improved practices, the viability line has changed over the years,'' Alito wrote. And he said whether a fetus can survive at 24 weeks may depend on whether a woman gives birth at a city hospital with advanced care or a rural facility.
"On what ground could the constitutional status of a fetus depend on the pregnant woman's location?'' Alito asked."Can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country?''
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On Twitter: @azcapmedia
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Selected Arizona reactions to U.S. Supreme Court ruling overturning Roe v. Wade and the right of abortion.
Gov. Doug Ducey:
Roe v. Wade was a poorly reasoned ruling that had no constitutional basis. The Supreme Court has made the right decision by finally overturning it and giving governing power back to the people and the states.
Secretary of State Katie Hobbs (and Democratic candidate for governor):
Republican extremists have plotted for decades to install partisan judges at every level of the judicial system with the goal of ending women's fundamental freedom to choose our own health care. As governor I will use my veto pen to block any legislation that compromises the right to choose.
Attorney General Mark Brnovich (and candidate for U.S. Senate):
Attorneys general have a solemn responsibility to defend the most vulnerable among us, and that's exactly what we did today. I look forward to seeing the issue returned to elected representatives where it belongs.
Brittany Fonteno, president and CEO, Planned Parenthood Arizona:
Today's decision by the U.S. Supreme Court to annihilate abortion access throughout the country is devastating and will gravely impact pregnant people and their families in Arizona.
Cathy Herrod, president, Center for Arizona Policy:
The court made the right call. There's no constitutional right to abortion in the United States Constitution. The prior Arizona law should be enforceable.
Sen. Mark Kelly:
Women deserve the right to make their own decisions about abortion. It is just wrong that the next generation of women will have fewer freedoms than my grandmother did.
Sen. Kyrsten Sinema:
A woman's health care choices should be between her, her family, and her doctor. Today's decision overturning Roe v. Wade endangers the health and well-being of women in Arizona and across America.
State Senate Republican leaders:
Finally, justice is served for all those babies that never had the chance to live. The states will now decide how to protect mothers and their unborn children.
House Minority Leader Reginald Bolding:
The court's decision goes directly against the will of the American people, the vast majority of whom support access to legal abortion. Let's be clear about what this is really about: the anti-choice, anti-freedom movement doing whatever it takes to advance their ideological agenda of power and control regardless of the damage they leave in their wake.
Congressman Paul Gosar:
Today's repudiation by the highest court of the land is a long overdue correction of an injustice that has led to over 62 million American babies slaughtered, more than the total deaths caused by World War II.
Congresswoman Debbie Lesko:
The abortion debate will finally be returned to the people through their elected representatives. Now, more than ever, it is time for us to united to support vulnerable women and their unborn babies, and it is time for Republicans and Democrats alike to reject violence and intimidation.
Congressman Raul Grijalva:
It takes away the most important and life-changing decision a woman will ever make. It is a fundamental and disguising restructuring of the progress we have made as a country to afford women equity.
Congressman Ruben Gallego:
The right-wing majority on the court, hellbent on rolling back women's rights, chose to take our country backwards and endanger the lives of American women by ripping away the right to choose. This decision strikes against the heart of our values and will cost American lives.
Jennifer Allen, executive director ACLU of Arizona:
With today's decision, the Supreme Court has turned back the clock nearly 50 years on our fundamental rights. However, Arizona voters can change the course of history by electing candidates down the ballot who will defend access to abortion care.
Marco Lopez, Democratic candidate for governor:
By overturning Roe v. Wade and rejecting 50 years of precedent, the Supreme Court has put our fundamental right to make decisions about our own bodies in jeopardy. This harmful decision affects us all, but is particularly destructive to women of color, financial disadvantaged folks and their families.
Matt Salmon, Republican candidate for governor:
After decades of tireless advocacy, the U.S. Supreme Court has stood up in defense of the Constitution and acknowledged the important role of the states in protecting our world's most vulnerable. These courageous justices deserve credit for doing it is right amid unfair threats and political pressure.
Kari Lake, Republican candidate for governor:
A new chapter of life has begun. A chapter where we help women become the mothers they are meant to be. Thank you, God.
Karrin Taylor Robson, Republican candidate for governor:
After nearly 50 years and tens of millions of innocent lives lost, the Supreme Court has finally reversed the Roe decision that led to so much pain and anguish across our country. This is the day we have been waiting for.
Kris Mayes, Democratic candidate for attorney general:
Today's Supreme Court decision to overturn Roe is devastating. This is an all-hands-on-deck moment. I refuse to go back.
Blake Masters, Republican candidate for U.S. Senate:
This is a huge victory for children across the country. For decades, we allowed a terrible court ruling to justify an abortion regime. That ends today, but the pro-life fight has to continue in the states.
Jim Lamon, Republican candidate for U.S. Senate:
Roe v. Wade was clearly unconstitutional from the beginning. I am thankful that we have a SCOTUS who recognizes that, the importance of our states' rights, and the sanctity of life.
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On Twitter: @azcapmedia