PHOENIX — With the stroke of a pen at 10:12 a.m. on Monday, Arizona now has a right to abortion in the state constitution.
But the formal canvass of the vote on Proposition 139 by Gov. Katie Hobbs does not make the controversy or even the legal fights go away.
Nor does it mean that women right now have the right to terminate a pregnancy after 15 weeks.
In fact, this may be just the first step in what could be a months-long court battle.
Attorney General Kris Mayes said she believes that the new constitutional amendment automatically overrides that 15-week state law.
She said that should be obvious given that the initiative spelled out all abortions are legal without restrictions until fetal viability, generally considered between 22 and 24 weeks. And it also allows abortions beyond that point if a treating health care professional determines it is “necessary to protect the life or physical or mental health of the pregnant individual.’’
Still, Mayes acknowledged that some doctors may not be willing to perform the procedure just yet, what with the risks of criminal and civil violations under the old law, but would rather wait for a court to issue a ruling.
That’s the case with Planned Parenthood Arizona where an official said it will not begin providing post 15-week abortions just yet but are “quickly staffing up and updating internal care protocols to position themselves to be able to provide care after 15 weeks as quickly as possible once legal clarity is established.’’
And even Dr. Paul Isaacson, a Phoenix obstetrician and gynecologist who has been a major booster of the initiative, said he has no intention of terminating such pregnancies — at least not until a court actually rules that the 15-week law is no longer enforceable.
Such a lawsuit is expected, perhaps as early as next week, from either the American Civil Liberties Union of Arizona or the Center for Reproductive Rights, both of which have been at the center of the state’s abortion battles.
All that, however, is just the beginning.
There are a host of other laws on the books, ranging from waiting periods and clinic licensing to whether it’s legal for a woman to terminate a pregnancy because of a fetal genetic defect.
And then there’s the yet-to-be-answered question of whether that fundamental right of abortion extends to minors.
There’s also the fact that Proposition 139 does not clearly preclude any regulation at all. It allows the enactment and enforcement of abortion laws that are “justified by a compelling state interest that is achieved by the least restrictive means.’’
Supreme Court Chief Justice Ann Scott Timmer speaks Monday about the process of certifying Arizona election results during the formal canvass. She is joined (from left) by Attorney General Kris Mayes, Secretary of State Adrian Fontes and Gov. Katie Hobbs. The signing of voter-approved Proposition 139 could be the first step in months of court litigation over adding the right to an abortion to Arizona's state constitution.
Mayes said hashing all that out could take time.
“We’re looking at a fair amount of litigation over the next two years,’’ she told Capitol Media Services.
For example, one is in the category of “informed consent.” It creates a 24-hour waiting period between when a women seeks the procedure and when it can be performed.
During that time, the doctor is supposed to provide information about the nature of the procedure, immediate and long-term medical risks, the probable gestational age of the fetus and alternatives to the procedure “that a reasonable person would consider material to the decision of whether or not to undergo the abortion.’’
Women also need to be informed that medical assistance may be available for prenatal, childbirth and neonatal care. And they are to be told that the father is financially liable for support, even if he has offered to pay for the procedure.
A separate statute requires performance of an ultrasound and record sounds of any heartbeat — and then offer the woman a chance to see or hear them.
Mayes said she does not believe any of those fit within the “compelling state interest’’ exception.
“That’s a very, very narrow exception,’’ she said. “That could be for things like ensuring licensure of medical professionals so that women who are seeking an abortion can get an abortion from a licensed care provider.’’
On that front, at least, Mayes is in agreement with Cathi Herrod, president of the anti-abortion Center for Arizona Policy.
“We don’t let just anyone perform different types of medically invasive surgery,’’ Herrod said. But she sees the exception as broader than the attorney general.
“Public health and safety should require that any medical facility be licensed, including abortion clinics,’’ she said. Herrod pointed out that law was put in place following the 1998 death of Lou Ann Herron after a botched abortion.
Ditto, Herrod said, of requirements for doctors at abortion clinics to have admitting privileges at a local hospital.
That’s just the beginning of what is going to have to be sorted out by the courts.
Consider that current law says a minor cannot get an abortion without either parental consent or permission of a judge. Yet Proposition 139 extends that “fundamental right to abortion’’ to all, regardless of age.
Herrod said she believes the requirement for parental or court consent are defensible, even with the new constitutional measure, saying such measures “serve the public interest in providing for women’s health and safety.’’
Mayes, however, said she has no clear answer, saying that “probably will be litigated.’’
There are other, more complex laws.
One makes it illegal for a doctor to perform an abortion, knowing that the reason it is being sought is the race or sex of the fetus.
That law was contested in court.
But the lawsuit was thrown out when challengers could not show a judge that there actually was any person at the time who was denied an abortion because of the statute. So, it remains on the books.
That, in turn, became the template for a 2021 law that outlaws performing an abortion if the doctor knows the patient wants the procedure because the fetus has a genetic abnormality.
In fact, that law is still being litigated by doctors, including Isaacson, who contend the law overly vague. They say it it puts them at risk of facing not just criminal charges but civil fines and possible loss of their license to practice medicine if they simply counsel patients who come to them seeking care and possibly an abortion.
What’s also vague, the doctors say, is putting doctors in a position of figuring out whether a genetic defect is only one reason a woman might want an abortion — which would be legal under the law — or the sole reason, which the law makes a criminal offense.
Herrod also contends that nothing in Proposition 139 overturns existing laws that forbid individuals from obtaining abortion pills by mail.
That became an issue in the wake of the 2022 decision by the U.S. Supreme Court overturning Roe v. Wade and its constitutional right to terminate a pregnancy. With some states returning to outright bans or restrictions, the federal Food and Drug Administration enacted rules allowing the interstate transfer of abortion pills.
Arizona responded with its own state ban, one that Mayes considers null and void with the enactment of Prop 139. But the attorney general pointed out that even if the Arizona law is struck down, there’s another risk on the horizon.
There have been calls by some for Congress to enforce the Comstock Act, an 1873 law that makes it a crime to mail not just indecent materials across state lines but also anything “intended for producing an abortion.’’ That, said the attorney general, would make it impossible for doctors to perform medication abortions as the drug is not manufactured here.
Mayes said she will fight any such move, saying it interferes with states’ rights.
The bottom line for any challenges to existing laws could come down to what a court decides fits within that “compelling state interest’’ exception to the fundamental right of abortion.
Prop 139 itself seeks to provide some guidance, with a two-part test.
First, it has to be enacted “for the limited purpose of improving or maintaining the health of an individual seeking abortion care.’’ And all that has to be “consistent with accepted clinical standards of practice and evidence-based medicine.’’
Gail Deady, a senior staff attorney at the Center for Reproductive Rights, said that is a very narrow exemption.
“These regulations must respect a patient’s right to make their own decisions about their health and can only be enacted if they make the procedure safer for the person seeking an abortion, using the least restrictive approach possible,’’ she said.
“Importantly, this rule does not allow the state to impose restrictions aimed at advancing other interests, like political or ideological goals, that have nothing to do with protecting the health of the patient,’’ Deady said.
