Arizona voters will not get a chance to constitutionally protect abortion rights, at least not this year.
The group Arizonans for Reproductive Freedom will not turn in the petitions for a ballot measure it has been gathering since May, its treasurer, Shasta McManus, told Capitol Media Services.
She said the petition circulators were able to get only about 176,000 signatures ahead of Thursday's deadline.
Backers needed at least 356,467 valid signatures to put the issue on the November ballot.
And it would have taken about 450,000 names to ensure a sufficient margin to account for bad or otherwise disqualified signatures.
McManus said the organization will regroup and start putting together plans to seek a 2024 vote on the issue. Starting the signature gathering process in November — the earliest for that election — should provide far more time to reach the goal, she said.
That means, absent court intervention, Arizona will be able to start enforcing its territorial-era ban on abortion, which contains no exceptions for rape or incest — possibly immediately, at least in part of the state.
Women "don't have two years to wait"
Getting the measure on the 2022 ballot always was a long shot.
The petition drive did not start until May 17.
That followed the unusual leak of the draft opinion by U.S. Supreme Court Justice Samuel Alito showing that the high court was prepared not only to uphold a Mississippi law banning abortions after 15 weeks, but to overturn its historic 1973 decision in Roe v. Wade which said women have a constitutional right to terminate a pregnancy.
To meet the Thursday deadline, Arizonans for Reproductive Freedom would have had to gather more than 8,800 signatures each day in its all-volunteer effort. But McManus said the group had to try to put the issue on this year's ballot.
"Women in Arizona, they don't have two years to wait,'' she said.
The measure would have put a "right to reproductive freedom" in the Arizona Constitution. It would cover all matters related to pregnancy.
The initiative would have barred state and local governments from interfering with that right. And it would have covered issues ranging from contraception to elective termination of a pre-viable fetus.
It also would have allowed abortions at any stage of pregnancy "if the health or safety of the individual is at risk.''
To be hashed out in court
The status of abortion rights in Arizona right now is unclear.
The Arizona Court of Appeals issued an injunction in 1973 blocking the state and the Pima County Attorney's Office from enforcing the law that was then on the books. That came shortly after the Supreme Court's Roe v. Wade ruling.
Republican Attorney General Mark Brnovich has said his office plans to ask Pima County Superior Court to dissolve that injunction, with a filing expected next week.
That injunction allowing abortion in Arizona might apply only to Pima County, as the lawsuit involved what at the time was Planned Parenthood of Tucson.
There's also the complicating factor that state lawmakers approved — and Republican Gov. Doug Ducey signed — legislation earlier this year that prohibits abortion after 15 weeks. That was modeled after the Mississippi law in case the Supreme Court simply upheld that statute but left Roe undisturbed.
The new Arizona law takes effect at the end of September.
Ducey contends it will supersede the territorial statute. But Sen. Nancy Barto, R-Phoenix, who wrote the new legislation, said it specifically did not repeal the more stringent territorial law.
The governor said he expects the issue will have to be hashed out in court.
Separately, a group of doctors is going to federal court on Friday, July 8, to ask a judge to decide the legality and applicability of a provision in 2021 legislation that says Arizona law must be interpreted to acknowledge an unborn child is entitled to the same rights, privileges and immunities available to other citizens and residents of the state.
The Center for Reproductive Rights challenged that language last year. But Judge Douglas Rayes said he saw no reason to rule on it given that Roe v. Wade protected the right to abortion.
Now, the attorneys argue, that language could be used to prosecute doctors even in cases where the pre-1973 law permits abortion, such as to save the life of the mother.
Planned Parenthood opted out
The failure of the initiative to qualify comes after Planned Parenthood Arizona declined to support the initiative or work to get the signatures, even though McManus herself was a member of the board of the nonprofit arm of the organization when the petition drive started.
Chris Love, the immediate past president of the Planned Parenthood Action Fund, the lobbying arm of the organization, told Capitol Media Services that it shares the same goal as the initiative supporters, which is to keep abortion legal in Arizona.
"However, we have different ideas about strategy,'' she said. And that starts with what Love said was the rush to put the issue on the year's ballot.
"With the large signature threshold and lack of time to plan, get data, draft perfect language, and fundraise, it just wasn't an effort we could support for the 2022 ballot,'' Love said.
"Additionally, we asked for inclusion of reproductive rights and justice organizations in crafting the language and strategy as we are the experts.'' She said initiative organizers refused, "which is their right.'' But Love said had there been a broader coalition up front — before the initiative drive was launched — some potential problems with the wording of the measure could have been worked out.
McManus, for her part, is not blaming Planned Parenthood even though she said she was forced to leave the board of directors after the organization said it did not want anyone associated with it involved with the initiative. In fact, she said she considers it a success that there were this many signatures gathered in such a short period of time by an all-volunteer organization.
"Where I do put the blame is on the way that the state has made it nearly impossible for ballot measures to get on the ballot,'' McManus said.
Some of that is based in the Arizona Constitution, which says proposed amendments need to get a number of signatures equivalent to 15% of the people who cast ballots in the last gubernatorial election. That's where the 356,467 figure comes from.
In addition, the Republican-controlled Legislature has enacted various other restrictions on ballot circulators and other technical requirements.
It amended the statutes to say petition drives have to be in "strict compliance'' with every election law, overruling court decisions that citizen initiatives needed only "substantial compliance.''
Andrew Feldman, a spokesman for Planned Parenthood, said the organization's focus now is "to elect pro-abortion champions up and down the ballot in the midterms and build a broad coalition to address this issue directly in 2024.''
