Early returns show Proposition 139, to put a right to abortion into the Arizona constitution, winning so far by a margin of 63% to 37%.Β
Nearly half of the ballots have been counted.Β
If it's approved, women would be able to terminate a pregnancy without state interference until the point of fetal viability. That is generally considered between 22 and 24 weeks.
There would be no fixed end date at which an abortion could be performed. After viability, the measure would permit the procedure if a treating health-care profession made a "good faith judgment'' that terminating the pregnancy was necessary to protect the life or physical or mental health of the pregnant individual.
Foes, operating under the banner of It Goes Too Far, argued that language is really no restriction at all. They said the exception for mental health amounts to allowing a pregnancy to be terminated at any point prior to birth.
Arizona for Abortion Now did not specifically dispute that. But supporters said women don't wait until they are that far into a pregnancy to decide to have an abortion unless there is some very specific reason, such as a late-diagnosed medical problem.
The most recent report of the Arizona Department of Health Services shows that, out of 11,407 abortions performed in 2022, 25 were at or after 21 weeks.
Opponents also said that, as a constitutional amendment, it would override any other existing laws, ranging from requirements for an ultrasound to a 24-hour waiting period.
They also noted that even backers, including Democratic state Attorney General Kris Mayes, said it is less than clear whether it also would void laws prohibiting a minor from getting an abortion without either parental consent or permission of a judge.
But their ability to get out their message was hampered by limited resources. As of the last pre-election report, foes had collected less than $1.4 million in donations. That compares with more than $35 million in contributions in favor of the ballot measure.
The issue of abortion rights rocketed to the surface in 2022 when the U.S. Supreme Court overturned Roe v. Wade, the 1973 landmark decision that women had a constitutional right to terminate a pregnancy. That, in turn, returned the decision of what is legal to each state.
It was further complicated when the Arizona Supreme Court concluded last year that the 2022 ruling allowed the state to once again enforce an 1864 law that made it a crime to perform an abortion except to save the life of the mother.
A rally for abortion rights in Tucson on April 9, 2024.
That old law was in effect only briefly amid court fights, culminating with the narrow decision by state lawmakers earlier this year to repeal it. That left in place a 15-week limit, albeit one without exceptions beyond that point for rape or incest.
One point during the campaign was the fact that if Prop. 139 is defeated, it would leave the decision on abortion rights to lawmakers in the Legislature, which is currently controlled by Republicans, including many who made it clear they were in favor of a ban.
But Proposition 139, as a constitutional amendment, would bar legislative tinkering.
It could be repealed only by sending it back to voters. The only way for lawmakers to alter it would be to get a three-fourths vote in both the House and the Senate, and only if the change "furthers the purpose'' of the amendment.
The question of abortion rights played a role in several other races on the Nov. 5 ballot.
Supporters of the presidential bid by Kamala Harris hammered Donald Trump, who bragged that he appointed several of the Supreme Court justices who voted to overturn Roe. They noted he made multiple statements about where he stands on the issue, most recently by voting in his home state of Florida to support a six-week ban there.
The issue was even more pronounced in the Arizona race for U.S. Senate where Democrat Ruben Gallego and his supporters ran multiple commercials attacking Republican Kari Lake. Those included video of her in 2022, when she ran unsuccessfully for governor, calling abortion the "ultimate sin'' and praising the U.S. Supreme Court for its ruling overturning Roe.
Lake, in defensive mode, responded by saying that, if elected, she would not support a national ban and would abide by the decision of Arizona voters on Prop. 139.
