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Posted on July 3, 2020 in Arizona Law

Understanding Abortion Laws in Arizona

More than 600,000 abortions are performed in the US each year, although this number has been decreasing in recent years. Pro-life advocacy group Americans United for Life ranked Arizona as the most pro-life state in the nation in both 2018 and 2019. Recent changes in the Supreme Court have cast doubt on whether abortion will continue to be available in Arizona.

What does Roe vs. Wade Mean?

Roe v. Wade was the 1973 US Supreme Court case that legalized abortion nationwide. The Court ruled that restrictive abortion regulations are unconstitutional because they violate a woman’s right to privacy. The Court found a right to privacy in the Fourteenth Amendment’s prohibition against depriving people of “life, liberty or property, without due process of law.”

Several states permitted abortion on a relatively unrestricted basis even before Roe v. Wade. What Roe v. Wade did was to make abortion legal in every state, at least under many circumstances. Although the issue is complex, it is clear that no state may ban abortions during the first trimester, but that courts will tolerate certain restrictions at later stages of pregnancy.

Restrictions on Arizona Abortions

Arizona maintains some of the toughest restrictions on abortion of any state. As of March 2020, the following restrictions were in effect:

  • A woman seeking an abortion is required to first undergo in-person counseling at a designated abortion facility. This counseling is designed to discourage her from going through with the abortion. After the counseling, the woman must still wait another 24 hours before undergoing the abortion
  • Abortion cannot be covered by healthcare plans available in the state’s health exchange, except in cases of grave danger to life or health. The same is true of health insurance policies offered to public employees.
  • A minor cannot obtain an abortion without parental consent.
  • Arizona generally does not allow abortions past 24 weeks into a pregnancy, at which fetal viability is possible. The former limit of 20 weeks, effective until 2012, was struck down in federal court.
  • Healthcare professionals cannot use telemedicine to prescribe abortion medication.
  • Arizona places heavy burdens on abortion clinics with respect to equipment and staffing standards.
  • Medicaid does not cover abortions, even if they are medically necessary.
  • An ultrasound must be performed at least 24 hours before an abortion. The healthcare provider must allow the patient a chance to see the ultrasound before the abortion is performed.
  • Once a fetus reaches viability, abortion is permitted only when the mother’s life or health are in danger.
  • Mothers may not obtain abortions that are motivated by the race or gender of the fetus.

These are some of the reasons why Arizona is considered to have some of the toughest restrictions on abortions.

What if the Supreme Court Reverses Roe v. Wade?

The reversal of Roe v. Wade, if it happens, doesn’t mean that abortion will automatically become illegal nationwide. Instead, it would mean that each state could decide how to approach abortion. Mississippi might criminalize abortion, for example, while California might not change its abortion laws at all.

In Arizona, abortion would probably become a criminal offense immediately. Arizona law criminalized abortion long before Roe v. Wade, and those laws have never been repealed or overturned by the courts. Although it might seem strange that such laws could evade being struck down by the courts. Arizona’s anti-abortion laws have survived for one reason – they are never enforced.

The Issue of “Standing”

If Arizona’s anti-abortion laws are never enforced, nobody is in a position to challenge them. In Arizona as well as elsewhere, you cannot challenge a law simply because you don’t like it. You must show that the law is harming you in some way — in other words, you must show that you have “standing” before you can challenge the law.

For example, if you were a doctor who was arrested for performing an abortion, you would have standing to challenge the law in court. You would appeal to Roe v. Wade, and you would almost certainly win, because federal law prevails over state law. If the Supreme Court overturned Roe v. Wade, however, you could not use it as a defense and you would probably go to jail.

The Court of Public Opinion

Public opinion will not directly determine whether abortion remains legal in Arizona. If Roe v. Wade is overturned, the Arizona legislature can rewrite the state’s abortion law. Arizona courts might overturn abortion laws as unconstitutional. In no case will the public be directly consulted.

Nevertheless, public opinion is a potent form of power that can affect government decisions. Opinion polls show that Arizonans are about evenly split on the question of whether abortion should remain legal. Some believe abortion is murder, others don’t.