Here's how reproductive rights have changed in Arizona since Roe vs. Wade was overturned
Access to abortions in Arizona has shrunk and numerous threats to reproductive rights persist one year after the U.S. Supreme Court overturned Roe vs. Wade.
Fearing criminal prosecution, nearly all abortion clinics in the state immediately stopped providing abortion care last June 24 after the nation's highest court issued a ruling in its landmark Dobbs vs. Jackson Women's Health Organization case.
Abortion care would later resume, then stop, and then start again.
The Dobbs decision meant that states could set their own abortion laws without any federal standard protecting abortion access. In Arizona, the result was confusion, a court battle and intermittent stops in abortion care.
Reproductive rights advocates celebrated when an Arizona appeals court ruled Dec. 30 that abortions performed in the state by licensed physicians are legal up to 15 weeks of gestation despite a 19th-century, near-total abortion ban that remains on the books in Arizona.
The appellate decision was certainly a victory for reproductive freedom, but at the same time, access to abortions over the past year has become more restricted and the situation could worsen depending on future court decisions.
"It's not on the horrific, terrible scale, but we're definitely not so great," said Eloisa Lopez, executive director of the Abortion Fund of Arizona and Pro-Choice Arizona. "Of course, there's a lot of public outcry and upset when you see a full ban taking away abortion access, but I think because people saw that's been lifted, it kind of falls off people's radar and they assume we're safe."
Here are seven key ways reproductive rights have changed in Arizona since Dobbs:
Abortions are now only available up to 15 weeks with no exceptions for rape and incest
A state law that took effect in September limits abortions in Arizona to gestation of up to 15 weeks with no exceptions for rape and incest, though it does make an exception to save the life of the pregnant person. Prior to the 15-week ban, surgical abortions in Arizona were legal up until fetal viability, which is typically at 23 weeks to 24 weeks of pregnancy.
Though most abortions happen prior to 15 weeks, the ban is still adversely affecting patients, particularly people who already experience inequities in health care — people of color, young people and low-income people, said Brittany Fonteno, president and CEO of Planned Parenthood Arizona.
"People need abortions after 15 weeks of pregnancy and to force people to leave their communities, not everyone has access to go to California or to New Mexico to get an abortion ... the impact is one that cannot be overstated," she said.
"As access to abortion becomes restricted it doesn't actually take away people's need for abortion care. It just makes it more difficult for them to obtain."
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Near-total abortion ban in Arizona has never been repealed
After the Dobbs ruling, the legal focus in Arizona turned to a near-total ban on abortion that had been blocked from being enforced when the U.S. Supreme Court issued its Roe v. Wade decision in 1973. The law, which originates in the 19th century, mandates two-to-five years in prison for anyone who facilitates an abortion.
"When Roe v. Wade was handed down, Arizona law said abortion was not legal unless necessary to save the life of the mother," said Cathi Herrod, president of the conservative Center for Arizona Policy. "The only reason that law has been unenforceable since Jan. 22, 1973, was because of Roe. Now that Roe has been overturned and the Supreme Court has said it's up to the people, through their elected representatives, to decide abortion law, that pre-Roe law should be enforceable in Arizona."
After ping-ponging through the court system, an appeals court in December ruled that the 15-week ban could co-exist with the territorial law, and that abortions performed in the state by licensed physicians would remain legal up to 15 weeks. Anti-abortion activists have appealed the decision to the Arizona Supreme Court.
Even if the Arizona Supreme Court affirms the Court of Appeals decision, having the 19th-century law on the books in Arizona could cause future problems with abortion access, according to Jen Piatt, a health law expert who is deputy director of the Western Region Office of the Network for Public Health Law at Arizona State University's Sandra Day O'Connor College of Law.
"A future, different Arizona Supreme Court could change its mind — we’ve seen expressly how the U.S. Supreme Court has been willing to overturn its own precedent — and other courts may take the same tack in future decisions," Piatt wrote in an email. "Essentially, if this law is not repealed, there will always be an underlying threat to abortion access in the state of Arizona."
Arizona's 'fetal personhood' law remains a threat to abortion access
While a federal judge last year halted enforcement of a provision in a 2021 statute that grants human rights to fetuses, that ruling is not final, which means access to abortion in Arizona is still "hanging by a thread," as Lopez put it.
"It's not getting talked about enough. Our 15-week ban is really in kind of a temporary state right now," she said.
The 2021 law, signed by former Republican Gov. Doug Ducey, gave fetuses at each stage of development "all rights, privileges and immunities available to other persons, citizens and residents of this state."
"The case is still pending. All we could ask for was a temporary injunction," said Civia Tamarkin, president of the National Council of Jewish Women Arizona, which was one of the plaintiff groups that went to court seeking to stop the so-called "fetal personhood" law from taking effect. "This case is significantly important to access abortion in the state of Arizona because personhood laws by their very definition would potentially criminalize both the termination of the pregnancy and the actions of pregnant persons."
The impact that the personhood measure could have on abortion access in Arizona is "profound," Piatt, the health law expert, wrote in an email.
"If all Arizona statutes need to be read to apply to developmental embryos or fetuses, then providing a legal abortion in Arizona could still be prosecuted, under a separate criminal law prohibiting assault of persons, as a criminal assault on the fetus," she wrote. "This is only one example of how this law could be utilized to chill abortion access in Arizona despite the fact that it remains fully legal up to 15 weeks."
The issue is of high public health concern for many reasons, including research correlating higher infant and maternal mortality rates to states with higher restrictions on abortion, Tamarkin said.
Newly elected governor and attorney general defend abortion access
Reproductive rights advocates were buoyed by the election of Democrats Katie Hobbs as Arizona's governor and Kris Mayes as the state's attorney general. Both took office in January and have pledged to defend abortion access.
Yet while the election of Hobbs and Mayes was a positive step for reproductive health, Lopez said, the Arizona Legislature is still controlled by people who are anti-abortion, which places limits on what the state can do to improve abortion access.
"All Gov. Hobbs can really do is veto bad bills, which we saw her do this session. But any bill introduced to repeal restrictions that we currently have doesn't move anywhere when we still have anti-abortion Republicans still maintaining control of both the House and the Senate," Lopez said. "We're looking to the next election to really flip those seats so that the Hobbs administration can actually try to do something while she's in office."
On June 22, two days before the one-year anniversary of the Dobbs decision, Hobbs indicated a willingness to exercise whatever power she does have to ensure abortion access for Arizonans by signing an executive order limiting abortion-related prosecutions.
The executive order gives state Attorney General Kris Mayes the power to handle any attempted county prosecution under state abortion laws, bans state agencies from assisting investigations for alleged violations in other states and bans extradition of people accused of violating other states' abortion laws.
It also creates a Governor’s Advisory Council on Protecting Reproductive Freedom that would recommend ideas to "expand access to sexual and reproductive freedom health care in Arizona," among other goals.
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Patients are still confused if abortions are legal in Arizona
The intermittent bans on abortion care and back-and-forth over the legality of abortion in the courts in Arizona over the past year, as well as the tighter gestation window, resulted in a lot of confusion. Patients still call the Abortion Fund of Arizona asking whether or not abortion is legal in the state, Lopez said.
Lopez said she has started hearing stories about unwanted pregnancies from the past year that pregnant people ended up carrying to term. In one case, the mother is facing a future of expensive medical care for a child with serious health problems, she said.
Planned Parenthood Arizona in the last year put in place a "patient navigator" program to help patients understand their options and access care in the midst of the quickly-changing abortion regulations, Fonteno said.
"Our patient navigator program is comprised of people who are there to support patients in accessing abortion care, whether that's in our own health centers or in other states," Fonteno said. "It can also provide financial contributions to travel, child care, food, anything that is really needed to make sure that a patient can access abortion."
Another effect of the legal turmoil is that some clinics lost staff and had to reduce hours. And with patients from restrictive states like Texas coming to Arizona to get abortion care, there's more of a scramble for appointments.
Providers say: Arizonans who need abortions have alternatives to mifepristone
Abortion pills are under fire
The two drugs used in medication abortions in the U.S., including in Arizona, are mifepristone and misoprostol. Anti-abortion groups have launched a legal effort to bar providers and patients from accessing mifepristone. Abortion providers say they will still be able to provide medication abortions by using misoprostol only, though it's not as effective as the two-drug combination.
In the year since the Dobbs decision, mifepristone has been the target of an escalating battle over access to abortion care in the United States. Medication abortions are sometimes referred to as abortions with pills.
A federal judge in Texas issued a preliminary ruling in April that ordered the U.S. Food and Drug Administration to halt its approval of mifepristone.
"It is just another case that is threatening our ability to make our own reproductive decisions and we are not out of the woods with that case," Fonteno said. "We do have a temporary reprieve and we're thankful for Attorney General Mayes."
On the same day as the Texas ruling, a federal judge in Washington state ordered the FDA to maintain the status quo on mifepristone. Given the two contradictory court opinions, the status of the drug could end up with the U.S. Supreme Court.
The ruling in the Washington state case applies specifically to the plaintiff states, which include Arizona, Mayes has said. The Washington state lawsuit, which was filed Feb. 23 by Democratic attorneys general in 17 states and the District of Columbia, seeks to end FDA restrictions on mifepristone.
Abortion-rights opponents are not stopping at Dobbs.
The Dobbs decision was a "new beginning," said Cathi Herrod, president of the conservative Center for Arizona Policy, and groups that oppose abortion rights will continue to fight, she said.
"Overturning Roe v. Wade was the right decision for the U.S. Supreme Court," Herrod said. "In the last year we've seen the pro-life community rise up and increase services to meet the needs of women."
Herrod said her organization is waiting for the Arizona Supreme Court to rule on whether the near-total ban on abortion in the state is enforceable.
An affirmative ruling would ensure that "women will be protected from the tragedy of abortion and unborn children's lives will be saved," she said.
Herrod said she's also concerned about the use of pills for abortion, which she says is endangering lives, though doctors' groups, including the American College of Obstetricians and Gynecologists and the American Medical Association, say medication abortions are a "safe and effective method" of providing an abortion.
Just as abortion opponents have mobilized their community, so have proponents of abortion access, Fonteno said. Wanting to ban abortion is "incredibly out of touch with what the vast majority of Arizonans want, which is access to legal abortion care," she said.
"I think that we'll see more chaos and confusion coming. The difference is now we have really been working to mobilize support in our communities, and there has been such an outpouring of support," she said.
"The vast majority of people believe that people should be able to make their own decisions about when or if they have a family. While they are not backing down, neither are we. We are going to fight like hell to ensure that reproductive freedom is a reality."
Reach health care reporter Stephanie Innes at Stephanie.Innes@gannett.com or at 602-444-8369. Follow her on Twitter @stephanieinnes.
This article originally appeared on Arizona Republic: Abortion access in Arizona: 'Now is not the time to be complacent'
