Arizona abortions could end with Supreme Court decision

Abortions in Arizona could become illegal overnight if the U.S. Supreme Court overturns its landmark 1973 decision that said a woman has a constitutional right to end her pregnancy without government interference.

A state law that predates the Roe v. Wade decision and targets providers could be enforced if the high court overturns Roe. The high court on Wednesday considered a case challenging a new Mississippi law that bans abortion at 15 weeks.

The high court’s new conservative majority signaled it would allow states to ban abortion much earlier in pregnancy and may even overturn the nationwide right under Roe.

Republican Gov. Doug Ducey, an abortion opponent, said Wednesday he hopes the high court would do just that even if it means overturning decades of precedent.

"The court needs to do its job. The court needs to follow the Constitution," Ducey said. "And when the court discovers that a mistake has been made in the past, the court has the right to correct it."

Republican abortion opponents have long argued that Roe and a 1982 case known as Planned Parenthood v. Casey, which confirmed a constitutional right to abortion up until a fetus could survive outside the womb, were improperly decided. The high court has repeatedly struck down state laws that place an "undue burden" on abortion rights before viability, considered to be at 24 weeks. That’s changed after three new justices have further tilted the Supreme Court to the right.

RELATED: Supreme Court agrees to hear Mississippi's abortion ban in case that could lead to rollback of rights

Arizona is one of 26 states, all led by Republicans, that are either certain or likely to ban all abortions if Roe is overturned, according to the Guttmacher Institute, which advocates for reproductive rights.

Abortion rights advocates worry that Arizona women will immediately lose the right to seek abortion care if Roe is overturned because of the pre-1973 law.

The Arizona law says anyone who helps a woman obtain an abortion-inducing drug or performs or aids in a surgical abortion can be sentenced to two to five years in prison. The only exception is if an abortion is required to save the woman’s life.

The law dates to at least the 1901 territorial penal code, 11 years before Arizona became a state, according the the Legislative Council, which researches and drafts legislation for the Legislature.

The Legislature this year repealed another pre-Roe law that subjected a woman to from one to five years in prison if she has an abortion. That section was repealed as part of a larger law making it a felony for a doctor to perform an abortion because the fetus has genetic problems such as Down syndrome. A federal judge blocked key parts of that law in September.

The judge refused to put on hold a "personhood" provision in that law that says the state will interpret all laws to confer rights on unborn children, subject to the Constitution and U.S. Supreme Court rulings. Advocates worry that law is just another way to crimp abortion rights.

Arizona also has a 2012 law on the books that bans abortion at 20 weeks. That law was blocked by a federal appeals court and the Supreme Court refused to consider overturning that ruling.

According to the state Department of Health Services, more than 13,000 abortions were performed in Arizona last year, a number that has remained fairly constant for the past decade despite numerous new abortion restrictions enacted by the Legislature.

Julie Gunnigle, a Democrat and attorney who lost a 2020 bid for Maricopa County attorney, said the effect of banning abortions is predictable.

"We have decades of instances where that was the case and we saw that pregnant people and people who no longer wanted to be pregnant died as a result," Gunnigle said. "We know that the criminalization of abortion ... has the effect of killing women and we know that it does nothing to end abortion, only safe access."

Democratic state Rep. Athena Salman said women with the financial means will travel to states such as California without abortion restrictions.

"The reality of this is it’s going to become your financial circumstances and your ZIP code that will determine whether or not you have access to this essential form of health care," Salman said. She said those with lower incomes and people of color in particular will lose access.

Republicans who control the Legislature would surely step forward to advance new legislation if the Supreme Court overturns either Roe or Casey and the pre-1973 law could not be enforced. GOP lawmakers advance anti-abortion legislation each year and Ducey has signed the bills each time they reached his desk.

Both Senate President Karen Fann and House Speaker Rusty Bowers said recently that they strongly oppose abortion and would consider new legislation. Exactly what form that takes depends on what the high court ruling says, Ducey said.

"In terms of the law, the legislation, the court, that’s something for reflection on the specifics and the details," Ducey said. "What the law would look like ... would of course depend on the Legislature, and I’d look forward to leading that session."

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