(Drafted August 29, 2022)
(Updated January 4, 2023)
On December 30, 2022, the Arizona Court of Appeals recognized the state’s ban on abortions after 15 weeks of gestation, prioritizing it over a pre-statehood law that outlawed all abortions. While the court did not overturn the pre-statehood law, it determined that more recent state laws allowing some abortions override the total abortion ban, and therefore physicians may perform abortions within the limits of those laws without facing prosecution.
Kris Mayes (D), the newly elected Arizona Attorney General, announced that she would not appeal the court’s ruling.
Governor Katie Hobbs (D), who had previously pledged to call a special legislative session to expand abortion rights, said the court ruling eliminates the need for a special session since it enables some abortions to continue in Arizona. The Governor supports efforts to pursue a citizens’ initiative that would ask voters to enact broader access to abortions, since the Republican majority will block such a proposal at the legislature.
Those Republican legislators plan to introduce legislation to further restrict abortions and enhance prosecution against physicians who perform them.
A full summary of the current status of Arizona abortion access is outlined below.
On June 24, 2022, the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to abortion. Writing for the majority, Justice Alito stated, “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” The court’s decision overruled Roe v. Wade (1973), giving individual states full power to regulate any aspect of abortion not preempted by federal law.
Overturning Roe v. Wade put old state laws back into effect. Many states had “trigger laws” that were ready to take effect immediately if Roe were to be struck down. In addition, the Supreme Court’s actions opened the door for a myriad of new abortion restrictions. This chaotic legal environment has created confusion for patients and providers across the country.
In Arizona, prior to the Dobbs decision and pursuant to Roe v. Wade, abortion was allowed up to the point that a fetus could survive outside of the womb, or approximately 22-24 weeks. Multiple conflicting abortion restrictions have been enacted in Arizona, though, and after the Dobbs ruling, those inconsistent standards make it unclear whether any abortions are legal in Arizona.
As of this writing, courts have determined the 15-week ban is the overriding law; in December, the Arizona Court of Appeals allowed the pre-statehood ban on abortions to remain in place but ruled that physicians cannot be prosecuted for performing abortions for patients who are within the first 15 weeks of gestation. The Arizona Attorney General will not appeal the decision, but other legal challenges from abortion opponents will continue.
Arizona Abortion Laws
Territorial Abortion Ban (Pre-1901)
Since before statehood, Arizona has had a law on the books that prohibits all abortions, except when necessary to save a pregnant woman’s life and with no exception for rape or incest.
The old law states:
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.
Enforcement of this law was enjoined in 1973 after Roe v. Wade was decided.
In September, a Pima County Superior Court judge lifted the injunction, allowing prosecutors to enforce the total ban on access to abortions. In October, the Arizona Attorney General and Planned Parenthood announced an agreement that the state would not enforce the full abortion ban until 2023. In November, a court of appeals overruled the Pima County Superior Court decision, blocking enforcement of the pre-statehood law while numerous legal challenges move through the courts and provide clarity on which abortion law is in place in Arizona. In December, the Arizona Court of Appeals determined that while the 1864 law remains in effect, the more recent state law that allows abortions up to 15 weeks gestation overrides the total ban on abortions.
Fetal Personhood and Genetic Abnormalities (2021)
In 2021, the legislature enacted Senate Bill 1457. The bill contained a “fetal personhood” provision granting an “unborn child at every stage of development all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.” The language now calls into question whether abortion care can be criminalized via laws against aggravated assault, reckless endangerment, child abuse and more.
In late June, abortion rights advocates and providers filed an emergency motion asking for the court to clarify the vague language of the law and its application to those seeking or providing abortions. On July 11, a federal district court judge granted the preliminary injunction, temporarily blocking enforcement of this “fetal personhood” law as it applies to abortion care. The judge concluded that the law is overly vague and could put people at risk of arbitrary prosecution.
Another part of the 2021 law allows prosecutors to bring felony charges against any doctor who knowingly terminates a pregnancy solely because the fetus has a genetic abnormality. This portion of the law was enjoined by a federal district court judge in September of 2021 as unconstitutionally vague and unduly burdensome to the then-existing rights of women to terminate pregnancies before fetal viability. On June 30, 2022, however, the U.S. Supreme Court vacated that preliminary injunction and ordered the matter remanded for further proceedings consistent with the Dobbs decision.
15-Week Abortion Ban (2022)
In the 2022 legislative session, the legislature enacted Senate Bill 1164. Senate Bill 1164 became effective on September 24, 2022. It bans abortions after 15 weeks gestation unless there is a medical emergency threatening the life of the mother or a serious risk of substantial and irreversible impairment of a bodily function. There are no other exceptions to the law. Physicians who violate this law could be charged with a class 6 felony and lose their license. A pregnant woman may not be prosecuted for violating the law.
Once the courts clarify Arizona’s applicable laws, enforcement will fall to the cities, county prosecutors and the Arizona Attorney General. The City of Tucson has directed its police department not to make arrests over abortion bans. The Mayor of Phoenix also expressed concern about using city resources for enforcement. Maricopa County Attorney Rachel Michell has not stated a clear position on prosecuting abortions, though she did pledge not to prosecute women who have an abortion. (State law does not currently penalize women who have abortions.) Attorney General Kris Mayes has committed not to penalize medical professionals who perform abortions or women who receive an abortion in Arizona.
A Possible Ballot Initiative
Some groups in Arizona are advocating for a constitutional amendment through a ballot initiative, which would create a right for Arizonans to make decisions about abortion, contraceptives, prenatal care, childbirth, infertility care, and related reproductive services. Governor Hobbs has expressed her support for these efforts.
Abortion opponents may pursue a ballot initiative, as well, to ask voters to further restrict access to abortions.
The Biden Administration has made it clear that it will make every effort to protect and advance reproductive freedom. The Department of Justice has indicated that, under federal law, women who reside in states that ban abortions must be free to seek that care in states where it is legal. In addition, people must remain free to inform and counsel each other about abortion care that is available in other states. Federal agencies may continue to provide reproductive health services to the extent authorized by federal law.
The United States Attorney General declared that states may not ban the use of the FDA-approved Mifespristone, frequently used in medically induced abortions, because the state disagrees with the FDA’s expert judgment about its safety and efficacy. While the FDA determined that Mifespristone could be prescribed via telemedicine and shipped via mail, Arizona law currently prohibits the use of telemedicine to administer medications for medical abortions. In January, the U.S. Justice Department determined that mailing mifepristone and misoprostol does not violate require the U.S. Postal Service to cease deliveries of the drugs that are used to induce abortions. An Arizona-based law firm has filed a lawsuit in Texas against the federal government in an attempt to ban the use of those abortion-inducing medications.
The Secretary of Health and Human Services also reminded healthcare providers that the federal Emergency Medical Treatment and Labor Act, or EMTALA, requires hospitals receiving Medicare and Medicaid funds to provide necessary stabilizing treatment to people suffering from an emergency medical condition, which includes abortion when that is the necessary treatment. The Department of Justice is currently challenging state laws that prevent a hospital from fulfilling its obligations under EMTALA as violating federal law.
Disclaimer: The information provided herein does not and is not intended to constitute legal advice; instead, all information and content are for information purposes only. In addition, the information provided may not contain the most up-to-date legal or other developments. AzAFP recommends that you consult with your own legal counsel for guidance regarding your specific practice and activities.
 A.R.S. § 13-3603.
 A.R.S. § 1-219
 A.R.S. § 13-3603.02
 Republican legislators could send stricter abortion limits to the ballot through a referral, rather than a citizens’ initiative, since a legislative referral does not require the Governor’s signature. Those who support broader abortion access face a harder process, since they need to collect voter signatures to advance their proposal to the ballot through a citizens’ initiative.
 A.R.S. § 36-3604