Arizona Abortion Law: Understanding The Legal Restrictions

Abortion in Arizona has been the subject of much debate and legal back-and-forth in 2024. The state's abortion law has changed several times this year, with a near-total ban on abortions passed in 1864 being repealed in May and a 15-week ban on abortions remaining in place. This law does not include exceptions for rape or incest. The 1864 law, which was revived by a court ruling in April, made abortion illegal in almost all cases, except when the mother's life was at risk. The debate around abortion in Arizona has been heated, with protests and demonstrations taking place throughout the year. The state's Democratic Attorney General, Kris Mayes, has vowed not to enforce the near-total ban, and abortion rights groups are working to get abortion rights on the November 2024 ballot.

Abortion law history in Arizona

The history of abortion laws in Arizona has been a tumultuous one, with the state going back and forth on the issue over the years.

As a territory, Arizona banned abortion in 1864, with the law stating that anyone who administered "any medicinal substances" or "used any instruments" to "procure the miscarriage of any woman then being with child" would be punished with imprisonment. This law remained in effect even after the territory achieved statehood in 1912. However, it was not always enforced, and physicians continued to perform abortions.

In 1950, the state legislature passed a law that made it a criminal offense for a woman to have an abortion or actively seek one, regardless of whether she went through with it. By the time the US Supreme Court handed down its decision in Roe v. Wade in 1973, Arizona's abortion law had evolved to fully ban all abortions, with prison time as the punishment.

The Roe v. Wade decision meant that states could no longer regulate abortion in the first trimester, and so Arizona's total ban was no longer enforceable. However, the state continued to pass laws restricting abortion access, such as requiring abortion providers to show women ultrasounds of their fetus before the procedure. In 2012, Arizona banned abortion after 20 weeks of pregnancy, but enforcement of this ban was permanently blocked under an injunction.

In 2019, Arizona law required only medical doctors to perform abortions, and women were mandated to have a 24-hour waiting period after seeking an abortion and undergo in-person state-mandated counseling. By 2022, Arizona had banned all abortions after 15 weeks of pregnancy, except when necessary to save the life of the mother.

On June 24, 2022, the US Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health, returning the issue of abortion regulation to the states. This decision led to a period of uncertainty in Arizona, with the state's 1864 law coming back into effect, only to be repealed by the state legislature and signed by Governor Katie Hobbs in May 2024. As of September 14, 2024, abortion is legal in Arizona up to 15 weeks of pregnancy.

Current abortion laws in Arizona

Abortion laws in Arizona have been in flux in 2024, with a near-total ban on abortions passed in 1864 being repealed in May and taking effect in September.

The 1864 law

The 1864 law banned abortions except to save the life of the mother. It was passed when Arizona was a US territory and remained effectively dormant during the decades that Roe vs. Wade enshrined a federal right to abortion.

The 2024 repeal

On May 1, 2024, the Arizona Senate voted to repeal the 1864 law by a narrow margin of 16 to 14, with a couple of Republicans joining Senate Democrats. The repeal kept the state's 15-week pregnancy ban in place.

Current situation

As of September 14, 2024, abortions are legal in Arizona under certain circumstances and subject to restrictions. Doctors can perform abortions up to 15 weeks gestational age. After 15 weeks, abortion is legal if a doctor determines there is a medical emergency.

Restrictions

• Abortion for reasons of fetal race, sex, or genetic abnormality is not permitted.
• Parental consent is required for minors seeking an abortion.
• Abortion providers must adhere to ultrasound and counselling requirements.
• Only licensed physicians can perform abortions.
• Medication abortion is restricted and may only be provided by a qualified physician.
• Abortion clinics and providers are subject to various licensure and reporting requirements.

Future developments

While abortion remains legal in Arizona, the law is subject to ongoing court cases and legislative action, which may result in changes to the legality and accessibility of abortion in the state.

Additionally, there are efforts to enshrine the right to abortion in the Arizona constitution, with a ballot proposal planned for November 2024.

The impact of the abortion law on healthcare providers

Arizona's abortion law has had a significant impact on healthcare providers, who are now facing a highly regulated and legally complex environment. The law imposes several obligations and restrictions on providers, which can be challenging to navigate. Here is an overview of the impact:

Legal and Clinical Complexity: The Arizona abortion law has created a complex legal and clinical landscape for healthcare providers. The law's definition of "abortion" and the specific circumstances under which it is permitted or prohibited can be challenging to interpret. Providers must ensure they understand the legal definitions and restrictions to avoid potential prosecution.

Ultrasound and Counselling Requirements: Arizona law mandates that patients undergo an ultrasound and receive state-mandated counselling at least 24 hours before the abortion procedure. Healthcare providers are responsible for ensuring that these requirements are met. This includes providing information on the “probable anatomical and physiological characteristics" of the fetus, the nature of the procedure, associated medical risks, and the legal obligations of the biological father.

Parental Consent and Judicial Bypass: For minors seeking abortions, healthcare providers must obtain written and notarized consent from a parent or legal guardian. Alternatively, minors can seek a judicial bypass, which allows them to bypass parental consent with authorization from a judge. This process adds complexity and potential delays to the care provided by healthcare professionals.

Licensure and Reporting Requirements: Abortion providers and clinics in Arizona are subject to stringent licensure and reporting requirements. Providers must have admitting privileges, and they are obligated to record and report specific information about the abortions they perform. While patient anonymity is protected by law, the reporting requirements add an administrative burden to healthcare providers.

Physician-Only Requirement: Arizona law stipulates that only licensed physicians can perform surgical abortions. This restriction limits the availability of abortion services and places additional demands on licensed physicians, who may already be facing increased patient caseloads due to the reduced number of providers.

Medication Abortion Restrictions: Medication abortions in Arizona can only be provided by qualified physicians and cannot be delivered through couriers, mail, or delivery services. This restriction limits the accessibility of medication abortions, particularly for individuals in rural or remote areas.

Impact on Clinical Decision-Making: The abortion law in Arizona has influenced the clinical decision-making process for healthcare providers. Providers must carefully consider the legal implications of their actions, potentially consulting with legal professionals before proceeding with certain treatments. This adds a layer of complexity to an already challenging area of healthcare.

The impact of Arizona's abortion law on healthcare providers is significant, with increased regulatory obligations, legal complexities, and potential challenges to clinical decision-making. Providers must navigate these requirements while also ensuring they can continue to deliver safe and effective care to their patients.

The impact of the abortion law on women in Arizona

Arizona's abortion laws have had a significant impact on women in the state, affecting their healthcare decisions, access to safe abortions, and overall reproductive freedom.

One of the most notable impacts is the restriction on abortion access. The state's laws, including the now-repealed 1864 near-total abortion ban and the current 15-week ban, have made it challenging for women to obtain abortions. The laws impose various obligations and requirements on medical providers, which can make the process confusing and complicated for women seeking abortions. This complexity is further exacerbated by the constantly evolving legal landscape, with ongoing court cases and legislative actions that create uncertainty about the legality of abortion in Arizona.

The laws have also resulted in a decrease in the number of abortion clinics in the state. As of 2019, 80% of counties in Arizona did not have a clinic that provided abortion services, making it extremely difficult for most women in the state to access abortion care. This limited access can lead to delays in obtaining abortions, potentially pushing women beyond the gestational age limit for legal abortions in the state.

Additionally, the laws have impacted the reasons for which women can seek abortions. Arizona law prohibits abortions based on the fetal race, sex, or genetic abnormality. This restriction can create ethical dilemmas for women who receive a diagnosis of a severe fetal abnormality and must continue with the pregnancy against their wishes. Furthermore, the laws do not provide exceptions for cases of rape or incest, further limiting the circumstances under which women can legally obtain abortions.

The financial burden of obtaining an abortion has also increased due to the laws. Women may need to travel out of state to access abortion services, incurring additional expenses for transportation, lodging, and childcare. While some organizations, such as Planned Parenthood Arizona, offer financial assistance, the overall cost of obtaining an abortion has become more prohibitive for low-income women.

The impact of Arizona's abortion laws extends beyond the practical considerations of accessing abortion services. The laws have sparked debates about reproductive rights and women's autonomy in healthcare decision-making. Women in Arizona have participated in marches and protests supporting abortion rights, demonstrating their commitment to protecting their reproductive freedom.

The future of abortion laws in Arizona

On September 14, 2024, Arizona repealed H.B. 2677, a near-total abortion ban from 1864, which had been revived by a recent court ruling. This means that abortion is currently legal in Arizona under certain circumstances. Doctors can perform abortions up to 15 weeks' gestational age, and at any point in the pregnancy if there is a medical emergency. However, abortion is not permitted beyond 15 weeks, nor is it permitted for reasons of fetal race, sex, or genetic abnormality.

The law is highly regulated and imposes several obligations on medical providers. For example, at least 24 hours before the abortion, the patient must undergo an ultrasound and be offered the opportunity to view the active ultrasound image. Only licensed physicians can perform surgical abortions, and medication abortion may only be provided by a qualified physician. Parental consent is also required for minors seeking an abortion.

While abortion is currently legal in Arizona, the law is subject to change. Several abortion laws are being litigated in the courts, and it is unclear when these cases will be resolved. Additionally, there is an upcoming ballot measure on abortion legality that could make abortion legal in the state up to viability, which is generally considered around 24 weeks' gestation.

Public opinion on abortion in Arizona is mixed. A majority of reproductive-age women in the state think abortion should be legal in all or most cases (70%) and support a nationwide right to abortion (66%). However, there is also opposition to abortion in the state, with Republicans in the state Senate arguing that the repeal of the abortion ban endangers children and violates Christian tenets.

Frequently asked questions