PHOENIX — A coalition of organizations is launching a bid to put the right to abortion in the Arizona Constitution.
The move unveiled Tuesday is designed to provide the ultimate backstop to keep the procedure legal regardless of what the Arizona Supreme Court is expected to rule later this year.
The justices are weighing whether the decision by the U.S. Supreme Court last year to overturn Roe v. Wade reinstates the state’s territorial-era ban on abortion except to save the life of the mother or if a 2022 state law allowing abortion through 15 weeks of pregnancy takes precedence.
As a constitutional amendment, the initiative also would provide a roadblock against future legislative efforts to enact further restrictions.
Backers have until July 3 to gather the legally required 383,923 valid signatures.
But given the normal rate of disqualifications plus anticipated legal challenges, a more realistic goal is more than 500,000 valid signatures.
But the proposal, if approved in 2024, would not provide for an unrestricted right to abortion.
Instead, it would guarantee that women can terminate a pregnancy without state restrictions to the point of viability of the fetus. That is generally considered between 22 and 24 weeks of pregnancy.
The decision to use viability as what should be constitutionally protected in the initiative was a compromise, said Jodi Liggett, senior advisor for NARAL Arizona.
“There are folks who would argue you shouldn’t have any restrictions at all,” said Liggett. But that wasn’t politically possible here, she said.
“We’re looking at the will of Arizona voters and respecting what they can support,” Liggett said, calling that line “operationally realistic.”
“We did some really deep research and polling,” added Chris Love, senior advisor for Planned Parenthood Advocates of Arizona, the political arm of the organization. “The language that we filed today is a reflection of the language that polls well with Arizona voters.”
Love said that language should attract the necessary signatures.
“And I think we will win,” she said.
That isn’t the analysis of Cathi Herrod, executive director of the anti-abortion Center for Arizona Policy.
Herrod is already seeking to point out what she considers problems with the measure.
It starts, she said, with the fact that it would do more than just enshrine a right to abortion prior to fetal viability in the Arizona Constitution. There also is language that would prohibit the state from denying, restricting or interfering with an abortion even after that point if “in the good faith judgment of an attending health care professional (the procedure) is necessary to protect the life or physical or mental health of the pregnant individual.”
That, Herrod said, could prove “too broad,” saying it could legalize abortion right up until childbirth.
But her organization would still oppose the initiative even if it only guaranteed a right to abortion to the point of viability. Herrod acknowledged it actually wants Arizona to go back to the way the law was prior to 1973 when the procedure could be performed only to save the life of the mother.
“We support protecting babies and their mothers from the tragedy of abortion to the fullest extent possible,” Herrod said.
If approved, Love said the language would do more than ensure that abortions remain legal and pretty much unrestricted, at least through viability.
It also could clear away some restrictions that anti-abortion lawmakers, unable since 1973 to ban the procedure, have erected. That includes everything from waiting periods to regulation of where abortions can be performed.
“The language that we’ve used is very narrow with regard to what the Legislature can do with regard to additional restrictions on the fundamental right,” Love said.
But it is less than clear exactly where that line would be drawn.
For example, Herrod said, the verbiage could potentially overturn existing “common-sense state laws on parental consent and informed consent.”
“Good question,” Liggett said, noting that the initiative essentially is silent on that.
“Nothing here automatically strikes that down,” Liggett said. “It would have to be litigated if anyone cared to challenge that specific provision in Arizona law under the new standard and right.”
Getting all this adopted is going to take a lot of money.
Liggett said even with the positive results of polling, it will cost between $40 million and $50 million not just to gather the necessary signatures but run the kind of campaign necessary.
Most of that will come from the parent organizations of groups like hers and Planned Parenthood Arizona, Liggett said.
But she also expects financial support from labor unions, progressive groups others who have political agendas beyond this specific constitutional amendment.
“It’s in their interest to turn out those same voters up and down the ballot,” Liggett said. And that, in turn, potentially could flip control of the Arizona Legislature.
The last time the Democrats controlled both chambers was in 1964.
There is evidence that abortion — and last year’s U.S. Supreme Court decision to return the issue to the states — already has had some effect.
Democratic Gov. Katie Hobbs, who campaigned last year on a promise to protect abortion rights, outpolled Republican Kari Lake who declared herself “pro life.”
The same thing happened in the race for attorney general where Democrat Kris Mayes won narrowly over Abe Hamadeh.
Mayes made a particular point of saying during the race that she would never enforce existing laws based on her view that a separate state state constitutional right to privacy already trumps state laws. Hamadeh, by contrast, said he would enforce the laws and prosecute doctors who violated them; women already are exempt from prosecution based on a 2021 change in state law.
Those positions of Hobbs and Mayes became more relevant in June when the governor issued an executive order stripping the state’s 15 county attorneys of their right to prosecute anyone for violating any laws, regardless of what the state Supreme Court decides on whether the 15-week law or the territorial era measure is the law of the land. And Hobbs acknowledged she gave that right to Mayes knowing that would ensure no one would be charged.
The legal issue in Arizona is complex.
It starts with that fact that abortions except to save the life of the mother were illegal in Arizona until the U.S. Supreme Court ruled in 1973 that women nationwide have a constitutional right to terminate a pregnancy prior to fetal viability.
That overrode the territorial-era law, precluding its enforcement in Arizona. But state legislators never repealed the statute and it remains to this day on the books.
What changed was a decision last year by the nation’s high court to review a Mississippi law that sought to ban abortions after 15 weeks. Anticipating a favorable decision, abortion foes in Arizona enacted and Gov. Doug Ducey signed mirror 15-week legislation to have it ready to enforce here.
But the U.S. Supreme Court actually went further, overturning its own 1973 precedent and leaving it up to each state to decide what restrictions or outright bans they want to place on abortions.
Based on that, Mark Brnovich, who was the attorney general at the time, got Pima County Superior Court Judge Kellie Johnson to rule last year that the old territorial-era law was once again valid. And abortions came to a halt in Arizona.
The Court of Appeals disagreed, ruling that the 2022 law prohibiting doctors from performing an abortion after 15 weeks supersedes the old law. That is the current status as the Arizona Supreme Court decides whether to review the appellate ruling.
A similar effort last year to put abortion rights on the 2022 ballot fizzled when several of the groups involved in this year’s bid, notably Planned Parenthood Arizona, refused to join based on concerns about the language.
Abortion rights advocates in Arizona are not alone in their decision to bypass state legislatures and take their case directly to voters.
Voters in several other states, including California, Michigan and Vermont successfully took similar issues to the ballot last year. And Kansas voters rejected a proposal pushed by abortion foes which sought to say that state’s constitution cannot be interpreted to establish a state constitutional right to the procedure.
In Ohio, an abortion rights measure is set to be on the ballot in November. But the future of that is complicated by a separate bid that went to voters Tuesday to require a 60% approval of future constitutional amendments.
