Abortion in Arizona
Abortion in Arizona is legal up to the point of fetal viability, as a result of Arizona Proposition 139 being put into the Arizona state constitution. Arizona and New Mexico are the southernmost continental states where abortion remains broadly legal.
Abortion and religion have intersected in the state, particularly in the case of Sr. Margaret Mary McBride, R.S.M., a Sister of Mercy.
In a 2014 poll by Pew Research Center, 49% of Arizona adults said that abortion should be legal in all or most cases, with 47% saying it should be illegal in all or most cases. In a 2022 poll of 938 registered Arizona voters by OH Predictive Insights, 87% said they wanted abortion to remain legal in all or some cases.
History
Territorial origins
Arizona's first ban on abortion was passed as part of the 1864 Howell Code, a year after the formation of the Arizona Territory. It read:“very person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years: Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.”Physicians, however, were arrested for performing abortions.
In the 19th century, bans by state legislatures on abortion were about protecting the life of the mother, given the number of deaths caused by abortions; state governments saw themselves as looking out for the lives of their citizens. By 1950, the state legislature would pass a law stating that a woman who had an abortion, or actively sought to have an abortion, regardless of whether she went through with it, were guilty of a criminal offense. By 1950, abortion was a criminal offense in Arizona.
''Roe v. Wade''
The US Supreme Court's decision in 1973's Roe v. Wade ruling meant the state could no longer regulate abortion in the first trimester. Despite the U.S. Ninth Circuit Court of Appeals overturning Arizona's April 2012 abortion law in January 2015, the law banning abortion remains on the books.By 1973, when Roe v. Wade was decided, Arizona's abortion law A.R.S. § 13-3603 fully banned all abortions with prison time:
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 was declared unconstitutional in 1973, in Nelson v. Planned Parenthood. The case was initially heard in 1972, when it declared the law constitutional. Only the decision in Roe changed the court's decision, in a brief rehearing in 1973. But the Arizona legislature never struck the law from the books.
As part of the statutes around abortion clinic regulations in Arizona and Florida that existed in 2007, there is a requirement that abortion providers show women ultrasounds of their fetus before they are allowed to have an abortion. Governor Jan Brewer signed into law in April 2012 abortion restrictions that prohibited the procedure after 20 weeks. In April 2012, abortion after 20 weeks of pregnancy became illegal in Arizona; however, enforcement of the ban was permanently blocked under an injunction. Targeted Regulation of Abortion Providers existed by 2013. In 2013, state TRAP law applied to medication-induced abortions and private doctor offices. In 2018, the state legislature passed a law that required the Arizona Health Department to apply for Title X funds as part of their attempts to defund Planned Parenthood.
Arizona law requires that only medical doctors can perform abortions, as of 2019. Women have a mandated 24-hour waiting period after seeking an abortion, and must undergo in-person state-mandated counseling. On January 1, 2019, a new law came into force in Arizona that required women to provide detailed medical information that was to be submitted to the state before they were allowed to have an abortion. Among the information the new law required abortion providers to collect was whether the abortion was elective or therapeutic, the number of abortions they have had in the past and information on any medical complications they have as a result of the abortion. This information is then collected by Department of Health Services, which provides the state with an annual report on abortions in the state, along with information on how the abortions are paid for in the state. In 2019, women in Arizona were eligible for pregnancy-related disability-associated medical care that included abortion or miscarriage.
As of May 14, 2019, abortion was legally not allowed after the fetus was viable, generally some point between week 24 and 28. This period uses a standard defined by the US Supreme Court in 1973 with the Roe v. Wade ruling, and not state law. On May 21, 2019, HB 2759 was introduced by Republican Representative Michelle Udall in Arizona's House with 20 other co-sponsors, to provide $2.5 million annually for a period of three years to create a pilot program run by Texas anti-abortion organization Human Coalition, with a purpose "to encourage healthy childbirth support childbirth as an alternative to abortion". The proposed legislation also said funds for this program "may not be used for abortion referral services or distributed to entities that promote, refer for, or perform abortions".
Post-''Dobbs''
In June 2022, the Dobbs v. Jackson Women's Health Organization decision overturned Roe. The passing of Senate Bill 1164 in March 2022, combined with the overturning of Roe, restricted abortions to before 15 weeks of pregnancy. S.B.1164 went into effect 90 days after the legislative session ended on June30. But S.B.1164 was found not to control abortion in its entirety given that §, which bans abortion entirely, is still on the books. These "dueling" laws led to a legal challenge.The injunction, which was lifted on September23, 2022, by Pima County Superior Court Judge Kellie L. Johnson, was temporarily reinstated by the Arizona Court of Appeals on October7, 2022. On December 30, 2022, the Arizona Court of Appeals ruled that the criminal penalties of the 1864 law could not be enforced.
On April9, 2024, the Arizona Supreme Court ruled in Planned Parenthood Arizona v. Mayes that the 1864 law could be enforced, to take effect 14 days later, but with no retroactive enforcement. As a result, abortion in Arizona temporarily became de jure illegal, except for when it is "necessary to save" the life of the pregnant woman. There were no exceptions for rape or incest, and the legally prescribed sentence for assisting in an illegal abortion is 2-5 years in prison. On April 26, 2024, the Arizona Supreme Court tersely rejected the Arizona Attorney General's motion for them to reconsider their decision.
Arizona Attorney General Kris Mayes, a Democrat, responded to the Arizona Supreme Court decision by declaring that "as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state". Mayes criticized the Arizona Supreme Court for having "risked the health and lives of Arizonans", after "effectively striking down a law passed this century and replacing it with one from 160 years ago... when Arizona wasn't a state, the Civil War was raging, and women couldn't even vote". Mayes later noted that another legal case in the Arizona Superior Court had delayed allowing enforcement of the 1864 law to be able to begin on June 8, 2024.
In the Arizona House of representatives, Republican Representatives blocked attempts to repeal the 1864 law on April 10 and April 17, but later, on April 24, three Republican representatives sided with all the Democratic representatives in passing a repeal of the 1864 law, 32–28. In the Arizona Senate, Republican senators blocked a repeal attempt on April 10, but later, on May 1, two Republican senators joined all Democratic senators in passing a repeal of the 1864 law by a 16–14 vote. On May 2, 2024, Arizona Governor Katie Hobbs signed the bill to repeal the 1864 ban.
In May 2024, the Arizona Supreme Court accepted Attorney General Mayes' request to further stay the 1864 abortion law, as they stayed enforcement of the 1864 abortion law until August 12, 2024. Mayes responded that the stay applied in the other legal case would result in another delay of enforcement to September 26, 2024. The repeal took effect 90 days after the legislative session ends, on September 14, 2024.
November 2024 ballot proposal
In April 2024, media outlet KJZZ published a document made by a lawyer for Arizona House Republicans, which detailed plans to defeat the citizens' ballot proposal on abortion; this document was confirmed to be legitimate by Arizona House Speaker Ben Toma, a Republican, who described the document as "ideas drafted for internal discussion and consideration within the caucus".- The first proposed Republican strategy was to offer a constitutional amendment to voters that "does not create a right to abortion", but, instead, protects the Arizona legislature's authority to "enact laws rationally related to promoting and preserving life and to protecting the health and safety of pregnant women", so that courts would have to consider the legislature's products "when interpreting the constitutional right to abortion". The proposed names for this Republican amendment were "Protecting Pregnant Women and Safe Abortions Act", the "Arizona Abortion and Reproductive Care Act", and the "Arizona Abortion Protection Act".
- The second proposed Republican strategy was named as "SEND VOTERS TWO OTHER OPTIONS THAT CONFLICT WITH AAA INITIATIVE" ; the strategy presents a "15-week Reproductive Care and Abortion Act and Heartbeat Protection Act", which the document admits is "a 14-week law disguised as a 15-week law because it would only allow abortion until the beginning of the 15th week". The strategy for providing this option was because it "could potentially pull votes from AAA Initiative", and make it increasingly "likely that the AAA Initiative will fail if vote is split ". The second strategy also highlights that "Voters would read Legislature's referral first on the ballot" if the Arizona legislature's proposal is given to the Arizona Secretary of State before the Arizona for Abortion Access ballot proposal is officially submitted.
On November 5, 2024, 2024 Arizona Proposition 139 was approved by voters. It established a right to abortion in the Constitution of Arizona up until fetal viability, which was re-affirmed by an Arizona court in March 2025.