By Slade Smith, AHPI Assistant Director
Edited by Kirin Goff, AHPI Director
UPDATE (June 24, 2022): The Supreme Court has released its decision in Dobbs v. Jackson Women’s Health, striking down Roe v. Wade as expected. As of today, the Arizona legislature has not yet adjourned, and unless it takes action, S.B. 1164 will not go into effect until 90 days after it adjourns. This technically leaves a gap in which the previously existing total ban on abortion takes full effect. In similar circumstances, Arizona prosecutors declined to prosecute marijuana possession charges in the gap between when voters passed a measure legalizing marijuana possession and the time when the measure became effective. We expect that prosecutors would show similar restraint in this circumstance and decline to bring charges for abortions that are permissible under S.B. 1164.
The United States Supreme Court has recognized abortion as a fundamental right for nearly fifty years since the landmark case Roe v. Wade. But that’s about to change, it appears. A leaked draft opinion from the Supreme Court in a key abortion rights case, Dobbs v. Jackson Women’s Health, indicates that the court intends to reverse Roe and eliminate the right to an abortion. What would that mean for the law in Arizona?
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- Abortion would be illegal after 15 weeks except in medical emergencies
- Physicians could still provide an abortion before 15 weeks
- The law would not criminalize women who have abortions
- It would still be legal to use and advertise contraception
- Abortion advertising could become illegal
- The Arizona Legislature (or the people) would likely pass new abortion laws
Abortion would be illegal after 15 weeks
Anticipating the Court’s decision, the Arizona legislature passed abortion legislation (S.B. 1164) that would go into effect immediately upon its effective date in late summer if Roe is reversed. The new law generally limits legal abortions to the first fifteen weeks of pregnancy, during which a licensed physician would be able to perform an abortion. “Licensed physicians” do not include nurses or pharmacists, but other law likely protects nurses or pharmacists who provide drugs or assistance for an abortion at the direction of a licensed physician. After fifteen weeks, physicians would be able to perform abortions only in a medical emergency to prevent death or serious health risks with permanent consequences. There are no other exceptions, such as rape or incest. A licensed physician who intentionally or knowingly performs a prohibited abortion would commit a Class 6 felony with a possible sentence of up to 2 years.
Physicians could still provide an abortion before 15 weeks
A law from before Arizona became a state (A.R.S. § 13-3603) makes providing an abortion illegal at all stages of pregnancy. There is concern, expressed by advocates and in the press, that this broad language “could effectively create a complete ban on abortions in Arizona.” But this is very unlikely, given how courts interpret statutes in harmony with each other. A.R.S. § 13-3603 won’t apply to licensed physicians because S.B. 1164 is a more recent law that specifically governs licensed physicians who perform abortions. Under clear-cut legal principles, courts will recognize that a legislature would not logically enact a law prohibiting physicians from performing abortions after fifteen weeks if it did not intend to allow them to do so before then. The result? Only licensed physicians would be able to perform abortions and generally only before fifteen weeks, but abortions would not be completely outlawed.
The law would not criminalize people who have abortions
There is also concern that women who obtain abortions will be criminally prosecuted. This is unlikely. There used to be a law (A.R.S. § 13-3604) that made it a crime for a woman to solicit an abortion, but the legislature repealed it last year. (The statute had been invalid since Roe but had remained on the books.) Although it is possible that a prosecutor might attempt to prosecute a woman who induces her own miscarriage under § 13-3603, there is no precedent for it being used for that purpose.
It would still be legal to use and advertise contraception
Other reproductive rights, including the right to contraception, should be unaffected by reversal of Roe. The right to contraception is established in a separate series of Supreme Court cases beginning with Griswold v. Connecticut in 1965. The leaked draft expressly states that the decision in the case is limited to abortion rights and does not affect other privacy-related rights such as the right to contraception established in Griswold. For example, the leaked draft will not affect the court’s 1977 decision in Carey v. Population Servs., Int’l that wholesale bans on contraception advertising are unconstitutional. Therefore, although Arizona has a statute on the books that bans advertising of contraceptives (A.R.S. § 13-3605), that ban will remain invalid and ineffective even if Roe is reversed unless the court’s ultimate decision is dramatically different from the leaked draft.
Abortion advertising may become illegal
The status of whether it would be legal to advertise or promote legal abortions is less clear. The same Arizona statute that bans contraceptive advertising also prohibits abortion advertising. The abortion advertising ban was invalidated by Roe because there was a right to an abortion, which meant that there was a right to receive at least some truthful commercial information about abortions under the First Amendment. Once there is no longer a right to abortion, however, the court presumably would evaluate an advertising ban under its normal test for commercial speech regulations, which might permit a complete ban if the government can show that it is necessary to achieve a substantial governmental purpose. Traditionally, the Supreme Court has frowned upon complete bans of advertising on legal products and services under this test–even unhealthy products like tobacco–but the leaked draft shows an inclination to treat abortion as unique.
More change in the law is likely
Of course, the laws may change further. The Supreme Court may decide future cases relating to contraception or other issues related to reproductive health. The Arizona legislature may make further changes to Arizona abortion laws and would have the full power to prohibit all abortions if it chose to do so. Legislators are actively considering further amendments to Arizona law and will likely continue to do so for the foreseeable future. Likewise, the people of Arizona may take matters into their own hands through a ballot initiative that could establish or preclude a right to an abortion in the state or otherwise change abortion law.