By Howard Fischer
Capitol Media Services
PHOENIX -- Women in Arizona won't be denied access to abortion, at least up to the first 15 weeks of pregnancy, because an 1864 abortion law outlawing it won't get a chance to be reinstated.
And it's all because state lawmakers finally ended their 2024 session and went home Saturday.
Legislators voted May 1 to repeal the territorial-era law that outlaws abortion except to save the life of the mother. That followed an April 9 order by the Arizona Supreme Court declaring that the decision by the U.S. Supreme Court overturning Roe v. Wade and its constitutional right of abortion made the old -- and never repealed -- law again enforceable.
Only thing is, all state laws take effect 91 days after the end of the session.
Saturday's adjournment makes that Sept. 14.
Attorney General Kris Mayes did get the Arizona justices to delay their "mandate'' -- the formal order reinstating the old law -- until Aug. 12 to give her time to decide whether to seek U.S. Supreme Court review.
And there already is a separate agreement made by her predecessor, Mark Brnovich, that the state will not begin to enforce the old law for at least 45 days beyond the effective date of the Supreme Court ruling. That takes Arizona through Sept. 26 -- nearly two weeks after the law that is at the center of the case will be repealed.
None of that returns the law in Arizona to where it was before Roe was overturned. Going that far will require voter approval in November.
Under Roe, women in Arizona were considered to have an absolute right to terminate a pregnancy prior to fetal viability. That generally is considered between 22 and 24 weeks.
There are some exceptions.
On the books is a 2011 law that makes the procedure illegal if the reason it is sought is the race or gender of the fetus. A trial judge had blocked it but it was reinstated by a federal appeals court which concluded no one who had sued actually had standing to bring the case.
And still being litigated is a 2021 law that makes it a felony, with a one-year prison term, to terminate a pregnancy if the woman is seeking the procedure solely because of a fetal genetic defect.
Once the nation's high court overturned Roe, Brnovich got Pima County Superior Court Judge Kellie Johnson to declare the territorial-era law enforceable even though state lawmakers in 2022 had enacted a 15-week ban to kick in should the U.S. Supreme Court uphold a similar Mississippi law.
That was stayed by the state Court of Appeals which said the 15-week law was enforceable. Ultimately the Arizona Supreme Court concluded Johnson's ruling was correct.
All that led to the May 1 vote by lawmakers to repeal the old law, leaving only the 15-week restriction.
That has been the law since the Supreme Court stayed its mandate -- and will be the permanent law after Sept. 26 when the old law formally disappears.
There had been a real concern there would be a gap between the final Supreme Court mandate and the effective date of repeal of the the territorial-era law when it again would be be enforceable In fact, California Gov. Gavin Newsom signed a measure last month to allow Arizona abortion providers to temporarily perform abortion services to patients from Arizona who travel to California for that procedure.
"We are grateful that the Legislature decided to conclude the legislative session, thus allowing abortion care to continue in Arizona without any gaps in services, said Erika Mach, chief external affairs officer for Planned Parenthood Advocates of Arizona, the political arm of the organization.
She acknowledged in her statement that still leaves Arizona with a 15-week restriction. And that law has no exceptions for rape or incest, though there is one for a "medical emergency,'' a term not defined in the law. (See related story)
But Mach said it is still a positive development.
"Individuals can rest assured knowing they can receive the care they need in a safe environment,'' she said.
This isn't the end of the debate on abortion and when it can be performed.
Voters may get a chance to put the law in Arizona back to the way it was before Roe was overturned.
Backers of what's been dubbed the Arizona Abortion Access Act say they already have far more than the 383,923 valid signatures on petitions to put the issue on the ballot. The deadline to turn those in to get them validated is July 3.
That measure would put a provision in the Arizona Constitution declaring that every individual "has a fundamental right to abortion.''
It also says the state cannot "enact, adopt or enforce any law, regulation, policy of practice that ... denies, restricts or interferes with that right before fetal viability.'' The only exception would be if there is a "compelling state interest.''
That, in turn, would be defined as protecting the health of those seeking abortion consistent with accepted clinical standards of practice. And it also cold not "infringe on that individual's autonomous decision making.''
There is language permitting the procedure after fetal viability in cases where a health care professional makes a "good faith'' determination it is "necessary to protect the life or physical or mental health of the pregnant individual.''
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By Howard Fischer
Capitol Media Services
PHOENIX -- Four Democratic lawmakers want a legal opinion on when women in Arizona can legally get an abortion after the 15th week of pregnancy and when doctors can perform them without risking going to prison.
And they want it soon.
In a letter to Attorney General Kris Mayes, the four point out that the 15-week limit, currently in effect, does allow for a pregnancy to be terminated after that point in cases of a "medical emergency.''
Only thing is, nothing in the 2022 law defines exactly what that means. And that, they said, creates problems.
"These pregnant people face, while in the midst of a medical emergency, a situation in which their future reproductive health is being threatened,'' the four wrote. Ditto, they said about the lives of those who are pregnant which "would be endangered or even lost due to confusion by doctors as to what constitutes a medical emergency under state law.''
But it's not just about patients.
"Medical doctors should not have to put their medical license or their personal freedom at risk for perform an abortion that they need to be medically appropriate to avert death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function,'' they wrote.
The letter, signed by Sens. Christine Marsh and Eva Burch and Reps. Judy Schwiebert and Stephanie Stahl Hamilton, seeks a response by the second week in July.
A spokesman for Mayes said she is working to meet that target.
All this became necessary because of the 2022 decision by the U.S. Supreme Court to overturn Roe v. Wade, the historic 1973 ruling which concluded that women have a constitutional right to terminate a pregnancy.
Under Roe, women in Arizona could get an abortion without having to provide a reason through fetal viability, generally considered between 22 and 24 weeks. After that, however, there always was an understanding that abortion was available to preserve the life or health of the mother.
The Arizona Supreme Court ruled in April that the demise of Roe meant Arizona could again enforce a territorial-era law, never repealed, which outlaws the practice except to save the life of the mother. But the justices put that ruling on hold to give Mayes a chance to seek U.S. Supreme Court review.
That leaves the 15-week law, adopted in 2022, in place for the time being -- and what the four lawmakers say is a lack of a definition when a "medical emergency'' abortion is allowed after that.
"This is a situation that is faced daily by pregnant people across the state,'' they wrote to Mayes. "There is an urgent need to inform practitioners as to what is legally appropriate under current state law.''
This isn't an academic question.
Texas has a near-total abortion law.
That statute does permit the procedure in cases where a doctor exercises "reasonable medical judgment.'' Only thing is, like Arizona, that is not defined.
All that came into sharp focus late last year in the case of Kate Cox who sought an abortion after she learned her fetus as a lethal anomaly.
She argued that a continued pregnancy endangered her life and future fertility. But her doctors refused to perform the procedure because they feared running afoul of the law.
Cox ended up going out of state when the justices of the Texas Supreme Court concluded there was nothing unclear about the law. But the court did agree to ask the Texas Medical Board to come up with more guidance.
That board is weighing rules to clarify. But those rules remain in limbo following criticism from women, doctors and representatives of some of the state's largest medical associations who said they really don't clarify anything.
The Arizona lawmakers are seeking something more specific than what is going on in Texas, asking Mayes to "help articulate to both pregnant persons and medical practitioners how to determine what it means for a pregnant person to be experiencing a 'medical emergency.' '' That includes what medical implications a doctor could use to satisfy the requirements to allow an abortion past the 15-week mark.
"To put it another way, at what point does a medical emergency allow for an immediate abortion under state law?'' they asked.
All this could become moot if voters approve a proposed constitutional amendment in November which would enshrine a right to abortion in the Arizona Constitution.
It would prohibit the state from denying, restricting or interfering with that right prior to fetal viability. And abortions would be allowed beyond that point in cases where "in the good faith judgment of a treating health care professional (it) is necessary to protect the life or physical or mental health of the pregnant individual.''
Backers claim they already have enough signatures to qualify for the ballot. But its passage is not assured, as there also is organized opposition by those who say that language, particularly the mental health exception, is too broad.
In seeking an opinion from Mayes, all four spelled out their request should not be seen as an endorsement of the current 15-week ban.
"To the contrary, we strongly oppose the arbitrary deadline of 15 weeks of pregnancy to obtain a lawful abortion in this state,'' they wrote.
"By placing such a restriction on reproductive healthcare, the state is threatening the lives of pregnant people, sending a signal that the state does not trust them with their healtcare decisions,'' they continued. "But the 15-week provision is current law and our constituents desperately need legal guidance on what constitutes a medical emergency after 15 weeks.''
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