Arizona's Abortion Trigger Law: What You Need To Know

Abortion laws in the US have been a hotly debated topic for decades, with the issue becoming even more polarising following the Supreme Court's decision to overturn Roe v. Wade in June 2022. The ruling eliminated the constitutional right to abortion, giving states the authority to implement their own policies on abortion access. This has led to a wave of new abortion laws and ballot measures being introduced across the country, with varying degrees of restrictiveness. One of the states that has attracted attention in this debate is Arizona, which currently allows abortions up to 15 weeks of pregnancy. However, there is no trigger law in Arizona, and the state's abortion laws remain in flux, with ongoing court cases and legislative actions that could change the legal landscape.

Arizona's abortion laws

The Current Legal Framework

Arizona currently permits abortions up to 15 weeks of pregnancy. This law, signed by Governor Doug Ducey, took effect 90 days after the legislative session ended. However, it is essential to note that this law does not repeal a 1901 statute that criminalizes performing any abortion unless it is necessary to save the mother's life. The state's Senate Republican Caucus asserted that abortions are now illegal in Arizona, except when the mother's life is at risk, until the new 15-week law takes effect.

The Impact of Roe v. Wade Reversal

The reversal of Roe v. Wade by the Supreme Court in June 2022 significantly altered the abortion landscape in Arizona. The decision eliminated the constitutional right to abortion and gave states the authority to regulate abortion access. As a result, multiple Arizona abortion providers have suspended all abortion procedures due to the uncertainty surrounding which law will take precedence.

The 1864 Law

A law enacted in 1864, before Arizona became a state, banned abortion in the territory. While this law was unenforceable after Roe v. Wade, it remained in effect. In April 2024, the Arizona Supreme Court ruled that this law could be enforced, making abortion in Arizona temporarily illegal, except when necessary to save the pregnant individual's life. However, the Attorney General, Kris Mayes, refused to enforce this law, and the ban was later repealed by the state legislature in May 2024.

Upcoming Ballot Measures

In November 2024, Arizona voters will decide on Proposition 139, which aims to establish a state constitutional right to abortion up to fetal viability. This initiative has gained significant support, with over 800,000 signatures collected, exceeding the required threshold. However, right-leaning groups are backing conservative judges to challenge such ballot measures in state supreme courts.

Regulations on Abortion Care

Even in cases of "legal" abortions, Arizona imposes extensive regulations on abortion care. These laws primarily impose obligations on medical providers, such as mandatory ultrasounds, in-person notices, and a 24-hour waiting period. Additionally, only licensed physicians can perform abortions, and specific reporting requirements must be met by abortion providers and clinics.

Parental Consent

Parental consent is required for minors seeking abortions in Arizona. A physician cannot perform an abortion for a minor without written and notarized consent from a parent or guardian or authorization from a judge through a judicial bypass process.

In summary, Arizona's abortion laws are complex and subject to ongoing legal challenges and legislative changes. While abortions are currently legal up to 15 weeks, with certain exceptions, the state has a history of restrictive abortion laws, and the future of abortion access remains uncertain, with upcoming ballot measures and court challenges likely to play a pivotal role.

The 1864 law

The 1864 Arizona abortion law, also known as the Howell Code, was enacted a year after the formation of the Arizona Territory and decades before Arizona became a state in 1912. The law criminalized all abortions except when the pregnant person's life was in danger, with no exceptions for rape or incest. It stated that:

> [E]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.

In June 2022, the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, and the injunction on the 1864 law was lifted in September 2022. This led to a period of confusion and uncertainty for abortion providers and patients in Arizona.

On April 9, 2024, the Arizona Supreme Court ruled in Planned Parenthood Arizona v. Mayes that the 1864 law could be enforced, making abortion illegal in the state except when necessary to save the life of the pregnant individual. There was significant opposition to this decision, even from some Republicans who had previously supported abortion restrictions.

The 1864 ban was officially repealed on May 2, 2024, when Governor Katie Hobbs signed H.B. 2677 into law. This repeal took effect on September 14, 2024, and replaced the previous restrictions triggered by the overturning of Roe v. Wade. Under the new legal framework, abortion in Arizona is legal up to 15 weeks of pregnancy, with certain restrictions and requirements, including mandatory ultrasounds and counseling.

The battle over abortion rights in Arizona continues, with activists working to enshrine abortion rights in the state constitution through ballot measures. The issue remains a focus of political campaigns, with voters indicating that abortion is a critical issue that will influence their decisions in the upcoming elections.

The 15-week ban

Arizona's 15-week abortion ban was signed into law by Governor Doug Ducey in March 2024. The bill, sponsored by Sen. Nancy Barto, R-Phoenix, will not go into effect until 90 days after the end of the legislative session, which typically ends in June. This means that the ban will likely take effect in September 2024.

Roe v. Wade

In January 1973, the Supreme Court issued a 7-2 decision in McCorvey's favour, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision. In June 2022, the Supreme Court overruled Roe and ended the constitutional right to abortion.

In the year following the overturning of Roe v. Wade, at least 200 people in the US were prosecuted for conduct relating to their pregnancies – the highest number of cases in a single year ever recorded. The vast majority of these prosecutions did not involve abortions. However, the overturning of Roe v. Wade has caused confusion over abortion rights in Arizona, with a legal battle ensuing over whether a near-total abortion ban from 1864 can be enforced.

Public opinion on abortion in Arizona

Arizona's abortion laws have been a topic of much discussion and debate in recent years, with the state's residents holding varying views on the issue. While the state has seen a push for greater abortion access, there has also been resistance from those who oppose abortion.

In 2024, Arizona's abortion law, H.B. 2677, repealed the 1864 near-total abortion ban, allowing abortions to be performed up to 15 weeks of gestation. This change was supported by a 2022 poll of registered Arizona voters, in which 87% said they wanted abortion to remain legal in all or some cases.

However, Arizona's abortion laws have been subject to ongoing court cases and legislative action, creating a complex and evolving legal landscape. The state's history with abortion has been influenced by its religious demographics, with the Catholic Church, in particular, playing a role in shaping attitudes towards abortion.

A notable aspect of the abortion debate in Arizona is the involvement of Latinas, who are poised to be a decisive voice in shaping abortion rights in the state. Despite assumptions about their religious beliefs and cultural norms, Latinas have demonstrated their support for abortion rights through their voting preferences and participation in abortion rights campaigns. Their growing political power, combined with their high rates of support for abortion access, has the potential to reshape the conversation around abortion in Arizona.

The views of Arizona's residents on abortion are diverse and influenced by various factors, including religious beliefs, personal experiences, and political ideologies. While there is support for abortion access, there is also opposition, with some residents favouring restrictions on abortion or a complete ban. The state's legal landscape reflects these differing viewpoints, resulting in a complex web of abortion laws and ongoing efforts to shape abortion policy through ballot measures and legislative action.

Frequently asked questions