Legally Speaking: Arizona remains in state of confusion regarding abortions

Are abortions legal in the state of Arizona? Prior to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, issued in June 2022, the answer was yes, with certain conditions. Post Dobbs there is no clear answer and even our political leaders and legislators cannot reach a consensus.

For quick background, in the 1973 case of Roe v. Wade, the Supreme Court ruled a woman’s right to an abortion was constitutionally protected.

In 1992, this right was further supported with the Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Then came Dobbs, and the Court overruled its previous decisions and decided there is no constitutionally protected right to an abortion and that each state must decide for itself whether it will allow abortions within its boundaries.

Now that the decision of whether an abortion is legal or not has been returned to the states, let’s examine Arizona’s laws.

Back in 1901 before Arizona was a state, A.R.S. §13-3603 and 3603.01 were passed. Essentially, they prohibit all abortions (by medication or instrument) except to save the life of the mother. Technically they state:

13-3603. 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.

13-3603.01 (A) Any physician who knowingly performs a partial-birth abortion and thereby kills a human fetus is guilty of a class 6 felony and shall be fined under this title or imprisoned not more than two years, or both.

(B) This section does not apply to a partial-birth abortion that is necessary to save the life of a mother who life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

The next law, A.R.S. §13-3603.02, adds that abortions performed because of the sex or race of the child or the race of the parent of that child, or because of a genetic abnormality of the child are also prohibited.

Fast forward to 2021 and Arizona’s “personhood” law which gives an unborn child (no matter the age) all the rights you and I have. A.R.S. §1-219 explains:

(A) The laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges, and immunities available to other persons…

Jump forward a couple months to the spring of 2022. The Arizona Legislature passed, and Gov. Doug Ducey signed into law, Senate Bill 1164, prohibiting abortions after 15 weeks unless there is a medical emergency. SB 1164 encompasses a number of laws including §36-2322 and 36-2324:

36-2322: (B) Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.

36-2324: (A) Any physician who intentionally or knowingly violates the prohibition in 36-2322

Interestingly, SB 1164 also includes §36-2326 which states it does not rescind 13-3603 or any other law restricting abortion. Specifically, §36-2326 reads:

The Legislature does not intend this act to make lawful an abortion that is currently unlawful…Repeal, by implication or otherwise, section 13-3603…or any other applicable state law regulating or restricting abortion.

Even before one can try to figure out which law prevails, one must first understand the laws and it is difficult to do that without looking at some basic definitions found in Arizona’s laws. Let’s start with abortion. What does “abortion” actually mean? According to §36-2151:

Abortion means the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, oral contraceptives used to inhibit or prevent ovulation, conception, or the implantation of a fertilized ovum in the uterus or the use of any means to save the life or preserve the health of the unborn child, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus.

What exactly does “medical emergency” mean? According to §36-2151:

Medical emergency means a condition that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

So, after reading all the laws above, are you still wondering what the law is and whether an abortion is legal or not in Arizona? If so, you are not alone. Even our leaders cannot say for sure. Attorney General Mark Brnovich argues the 1901 law is supreme and that SB 1164 even says it doesn’t overrule the earlier law, but Gov. Ducey believes SB 1164 is the law. Throw into the mix that the 1901 law is on hold pursuant to a court order enjoining its enforcement right now, SB 1164 doesn’t kick in until late September and the personhood law has been put on hold by a federal judge.

Confused? Understandably so. The lack of clarity has caused providers and clinics to stop providing abortions, after all, they don’t want a criminal charge, prison time, fines and a possible loss of their licenses.

When will we have clarity? Good question. I don’t know. #LegallySpeaking, either the voters (by way of an initiative on the ballot), the legislature (with either the recission of existing laws and/or the creation of new laws), or the Arizona Supreme Court will have to make the decision.

Until then, Arizona will be in a state of confusion.

Follow @monicalindstrom