By Howard Fischer
Capitol Media Services
PHOENIX — Democratic Attorney General Kris Mayes is once again at odds with Republican legislative leaders.
And, once again, the issue surrounds the right of Arizonans to obtain an to abortion.
Mayes has decided to side with attorneys from the American Civil Liberties Union who are challenging state laws that bar certain "advanced practice clinicians'' like specially trained nurse practitioners from providing abortion services. And she is asking — as are the challengers — Maricopa County Superior Court Judge John Blanchard to declare the restrictions unconstitutional.
What makes that significant is that Josh Bendor, the solicitor general in Mayes' office, said Arizona law generally requires the Attorney General's Office to defend state laws when they are challenged in court. But he said that doesn't apply "when there is not a plausible argument'' to make since voters in 2024 agreed put a right to abortion into the Arizona constitution.
That, in turn, has resulted in House Speaker Steve Montenegro and Senate President Warren Petersen hiring their own private lawyers at taxpayer expense who, on their behalf, are asking Blanchard to toss the case.
Neither GOP leader would respond to questions about their decision to defend a law that Mayes and Bendor say is legally indefensible.
"To me, the question is, why is the legislature spending taxpayer money to defend these kinds of things in the face of the will of the voters,'' Bendor said.
How quickly the issue can be resolved — and there can be a ruling on who can and cannot perform abortions in Arizona — is unclear. At a court hearing earlier this week, attorneys provided no timeline for when they would be ready to bring the case to court.
Central to the lawsuit is the fact that the state Board of Nursing, which also regulates advanced practice nurses, concluded in 2008 that they can safely perform first-trimester abortions.
They are a subset of registered nurses who, by virtue of advanced education and training have a broader scope of practice than registered nurses. And they also can hold specific licenses, like a certified nurse midwife and a nurse practitioner.
The Republican-controlled legislature responded almost immediately with a measure stripping the nursing board of its power to decide who can perform the procedure.
What changed since then is that voters in November 2024 approved Proposition 139 by a 3-2 margin.
It added language to the Arizona Constitution providing a "fundamental right to abortion'' prior to fetal viability, generally considered between 22 and 24 weeks. And attorneys for challengers say the only exception is when there is a "compelling state interest that is achieved by the least restrictive means.''
It is now up to Blanchard to decide the scope of the voter-approved initiative.
Challengers say the verbiage is on their side.
"The fundamental right to abortion means little when Arizonans cannot get care from a trusted and skilled provider in their own community,'' said Lauren Beall, a staff attorney at the ACLU of Arizona.
"Overturning senseless restrictions that tie the hands of advance practice clinicians is the next step to fulfill the promise of the Arizona Abortion Access Act.''
Montenegro and Petersen, through their lawyers, are taking a contrary position.
"None of the challenged provisions denies, restricts, or interferes with the right to abortion,'' they are telling Blanchard.
And if that argument doesn't work, they have another one — one linked to the exception within the amendment.
They contend that, if nothing else, each of the restrictions "is justified by a compelling state interest that is achieve by the least restrictive means.'' But the legal papers filed so far on their behalf do not explain that claim.
Bendor, however, said that the way he and Mayes see it, there is no legal basis for the GOP lawmakers to argue that the restrictions remain enforceable.
"The standards changed a lot when voters enacted Prop 139,'' he told Capitol Media Services. "It sets a pretty high burden for laws to meet to restrict the right to abortion.''
It was that touchstone, Bendor said, that his office used to evaluate the legal restrictions on advanced practice nurses. He said these are restrictions that exist "even though nurses have done so historically, have done so elsewhere, do other gynecological things that are more complicated.''
"We determined that these restrictions don't meet the constitutional requirements,'' he said.
Conversely, Bendor said, the office had no good arguments why the laws would pass muster, even with the exceptions built into Prop 139.
He said the decision to side with challengers was not made lightly.
"As a matter of process, we start with the assumption that our job is generally to defend state law,'' Bendor said.
"But when there just is not a plausible argument in defense of a given state law, then it's not in the public interest or within our responsibility to do so,'' he said. "And that's more likely to happen when you have an intervening change in constitutional law that then calls into question statutes that were enacted without that constitutional provision even in mind because it didn't exist at the time.''
And all that, said Bendor, leads to "a very different calculus'' in terms of the role of the Attorney General's Office.
In fact, Bendor said, that is the same sort of calculus that should have — but did not — affect the decision by GOP lawmakers to defend a law despite that intervening change of the adoption of Proposition 139.
The fight over the restrictions, according to challengers, has real-world impacts.
In their own legal filings they said that since that ban took effect, abortion has only been consistently available in Pima and Maricopa counties, with "interrupted and limited services'' at a single clinic in Coconino County. The requirement that only doctors can provide abortions, the challengers argue, means patients can often have to drive for hours.
They also claim there is no medical reason for the law, backing that up with is a statement from by the American College of Obstetricians and Gynecologists which says that bans like the ones in Arizona "are not based in science, improperly regulate medical practice, and impede patients' access to quality, evidence-based health care.''
And the federal Food and Drug Administration, in approving the drugs used in medication abortions, have authorized advanced clinicians to provide medication abortions.
But what's also involved, the challengers say, is that right of women to make choices for themselves.
"People choose their health care provider, whether a physician or an APC, for various reasons, some deeply personal,'' the lawsuit states. "Particularly when it comes to abortion care, they may have a strong preference for a trusted provided they have seen for other primary or reproductive health care.''
And sometimes, the lawsuit says, it can be as simple as people preferring a clinician to a doctor, wanting someone who can see them quicker, or even is closer to home.
"By overriding people's choice or provider, for no medical reason, the APC ban violates their autonomy.''
This isn't the first time Mayes has refused to defend abortion laws that were in existence when Proposition 139 was approved.
She took a similar stance when the ACLU and the Center for Reproductive Rights filed suit in 2025 challenging a series of prior existing laws.
That included laws including a 24-hour waiting period before a woman can terminate a pregnancy and a ban on doctors performing an abortion if they have reason to believe the patient is seeking the procedure because of a fetal genetic defect. Challengers also sought to void a prohibition on the use of telemedicine in abortion cases -- including a ban on the mailing of abortion pills to patients.
"We have determined that the three laws that the plaintiffs are challenging here are unconstitutional and cannot withstand tests that the voters stood up when they amended the constitution to protect abortion rights,'' Mayes said at the time.
All of those laws were later voided by a trial judge who rejected arguments by GOP lawmakers that they remained enforceable despite voter approval of Proposition 139. That ruling, however, remains on appeal.
There also is a separate but related issue playing out in federal court where Louisiana got a federal appeals court to ban telehealth abortions — and, specifically, the shipping of abortion pills — based on the argument that it allowed its residents to circumvent that state's abortion ban. But that ruling has been paused by the U.S. Supreme Court.
