Here's what you need to know about Arizona's abortion law
When the U.S. Supreme Court eliminated on June 24 the constitutional right to an abortion and left the issue up to states, the legality of abortion care in Arizona became unclear.
As a result, the past few months have been confusing and chaotic for patients and providers.
Abortion providers initially stopped offering both medication and surgical abortions after the Supreme Court ruling. Then a few weeks later most had resumed some, if not all, abortion care.
After Pima County Superior Court Judge Kellie Johnson's Sept. 23 ruling to reinstate a 19th century near-total ban on abortions, clinics once again started cancelling abortion appointments and posting notices on their doors and websites.
Clinics resumed abortion care after an Oct. 7 court decision to pause the 1864 law pending an appeal. For now at least, abortions are legal in Arizona up to 15 weeks of pregnancy.
Here's what you need to know about the latest legal status of abortions in Arizona:
Public health:Arizona's largest abortion provider is resuming care statewide
Did Arizona ban abortion?
Abortion has been legal in Arizona since an Oct. 7 appellate court ruling to pause the enforcement of the 1864 near-total ban on abortions. That ruling was related to a legal action originally filed in Pima County Superior Court.
Abortion-rights advocates agreed Oct. 25 to halt a separate lawsuit over the 1864 abortion ban filed in Maricopa County Superior Court in return for a promise that the state won't enforce it while the appeal to the Pima County case is litigated.
Prior to Oct. 7, interpretations of the legality of abortion in Arizona changed several times following the U.S. Supreme Court's June 24 Dobbs v. Jackson Women's Health Organization decision. Dobbs overturned the court's 1973 landmark Roe v. Wade ruling that protected an individual's right to choose to have an abortion.
Republican Arizona Attorney General Mark Brnovich had asked the court to uphold the 1864 law after the U.S. Supreme Court's reversal of Roe v. Wade.
Following Johnson's ruling, Brnovich said that nearly all abortions in Arizona were banned, except to save the life of the pregnant individual.
But there was confusion because a bill passed earlier this year criminalized abortions after 15 weeks of pregnancy became law in September, 90 days after the legislative session ended.
As of late October, both surgical and medication abortions had resumed in Arizona, with the 15-week law in effect. Abortions are now legal only until 15 weeks with no exceptions for rape or incest. Previously, abortions had been legal in the state up until viability, which is typically 23 weeks or 24 weeks.
Who is Kellie Johnson, the Pima County Superior Court Judge who made the ruling?
Ducey appointed Johnson to be a Pima County Superior Court judge in June 2017.
Prior to her appointment, Johnson was chief criminal deputy for the Pima County Attorney's Office.
When Ducey announced Johnson's appointment, a news release from his office said that Johnson graduated from the University of Arizona in 1993 with a Bachelor of Arts in English and Political Science, and received her law degree from the UA's James E. Rogers College of Law in 1996, where she graduated cum laude and was an editor for the Arizona Law Review.
In April 2021, Johnson sided with bar owners who challenged a 10 p.m. to 5 a.m. county curfew imposed during the COVID-19 pandemic, the Arizona Daily Star reported.
Johnson found that the curfew resolution adopted by the Pima County Board of Supervisors "is illegal and violates executive orders issued by Gov. Doug Ducey," the Star reported.
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What is the 1864 Arizona abortion law?
The basic provisions of the pre-statehood law were first codified by the first territorial Legislature of Arizona in 1864: It mandates two years to five years in prison for anyone who provides an abortion or the means for an abortion.
The exact language of the law, 13-3603 in the Arizona Revised Statutes, reads:
"A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years."
The 1864 law was in effect for much of Arizona's history, and numerous doctors and amateur abortionists went to prison after convictions for violating it.
A companion law also adopted in the 19th century said a woman could face at least one year in prison for obtaining an abortion. That was repealed only last year, though it's unclear if any woman served time for it. Congress granted statehood to Arizona in 1912.
What happened in 1901?
The state adopted the 1864 law with streamlined language in 1901; it remains on the books today as ARS 13-3603.
A Phoenix chiropractor was appealing his prison sentence in 1973 for performing an abortion when the Roe v. Wade decision made abortion legal nationwide.
The same year, a Pima County Superior Court judge granted an injunction on the 1864 law to Planned Parenthood Arizona (then known as Planned Parenthood of Tucson) weeks before the Roe decision, based on the concept that Arizona's right-to-privacy provision did not permit the state to outlaw abortion.
The state Court of Appeals overruled the lower court but had no choice but to reimplement the injunction once Roe was decided. When he filed his lawsuit in Pima County Superior Court, Brnovich was seeking to lift the injunction because of the U.S. Supreme Court's reversal of Roe.
Can I get an abortion right now in Arizona?
Yes. Because of high demand, including from pregnant individuals in other states such as Texas with more restrictive abortion laws, there may be a wait for an appointment.
Abortions are legal up until 15 weeks of pregnancy, with no exceptions for rape or incest.
As of Oct. 27, all nine licensed abortion providers in the state were doing abortions. Six of the clinics are in the Phoenix area, two are in Tucson and one is in Flagstaff.
Pending court rulings could again change legality of abortions in the state. The issue is expected to end up with the Arizona Supreme Court.
The Abortion Fund of Arizona continues to help pregnant individuals to find abortion care, including outside of Arizona if needed.
What about abortion pills?
Licensed abortion clinics in Arizona may prescribe abortion pills for what's known as a medication abortion. Now that abortion is once again legal, clinics as of Oct. 27 were prescribing the pills again.
A medication abortion, sometimes referred to as the abortion pill, or abortion pills, is a two-drug combination authorized by the U.S. Food and Drug Administration for use up to 10 weeks of pregnancy, though some providers say it's safe up to 11 weeks. Medication abortions account for more than half of abortions in the U.S.
Arizona law doesn't say anything about whether it's legal for a person to receive medication abortion drugs in the mail.
Plan C, a U.S.-based information campaign about medication abortions, says that while abortion pills are prescription medications in the U.S., it is possible to get them from some places without a prescription. Plan C is referring patients to a free, confidential Repro Legal Helpline at 844-868-2812.
Providers from outside the U.S. will ship abortion pills to U.S. residents. Those include Aid Access, operated by a Dutch physician, and Women on Web, which is based in the U.K.
The news site Newsy reported in June that a group in Mexico called "Red Necesito Abortar" "discreetly mails abortion pills approved by the FDA to at least three groups in the U.S. who can directly mail the medication, at no cost, to women who want them."
What are abortion providers saying?
Abortion providers say the best scenario for patients is having access to safe, legal and affordable abortions.
For now, abortions are legal in Arizona up to 15 weeks of pregnancy, but there are many restrictions that make it difficult for patients, including a limited number of clinics; a mandatory counseling session; a 24-hour waiting period to get an abortion, and cost — with very few exceptions abortions in Arizona are not covered by the state's Medicaid program and are often not covered by private insurance, either. Costs vary but are typically $500 to $600 or more.
The court case over whether or not Arizona's 19th century near-total ban on abortions should be reinstated remains a threat to abortion access here.
Without access to legal, safe abortions in Arizona, providers predict an increased maternal mortality rate, and increased number of health providers who will refuse to treat women experiencing a miscarriage because it could be viewed as an abortion.
Providers could fear losing their medical license, getting fined or getting arrested.
"This judge does not represent the will of the people, and I think the election in November will be very telling," Dr. Gabrielle Goodrick, the owner and director of Camelback Family Planning in Phoenix, said after learning about Johnson's ruling in September.
"It's completely out of touch with what is medically sound, what is proven to safe. ... This is just going to cause pain and suffering and delays in care."
After Johnson's ruling, the Arizona Medical Association said the negative consequences of reinstating the 1864 law would include "inappropriate interference in the physician-patient relationship, the sanctity of which is the bedrock of our health care system."
What is the next thing likely to happen on the abortion law?
The issue of whether or not the 1864 near-total ban will be reinstated is likely to end up with the Arizona Supreme Court.
Pending a court decision, abortion up to 15 weeks of pregnancy remains legal in Arizona with limited exceptions to save the life of the pregnant individual.
Reproductive rights advocates say they will continue to fight for more access to abortion, including pursuing an Arizona ballot measure in 2024 that would guarantee an individual's right to choose an abortion.
An effort to ensure abortion rights in Arizona during the summer failed to get enough signatures to get on the November ballot.
The Right to Reproductive Freedom Act would have left matters from birth control to abortion in the hands of women and their doctors, and would have barred any government efforts to penalize or restrict any licensed medical professional who provide services involving reproductive rights.
The Arizona Legislature could also take action on the legality of abortion in the state.
Republic reporters Stacey Barchenger, Mary Jo Pitzl and Ray Stern contributed to this article.
Reach the reporter at Stephanie.Innes@gannett.com or at 602-444-8369. Follow her on Twitter @stephanieinnes
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This article originally appeared on Arizona Republic: What you need to know about Arizona's abortion law
