This article was originally published by AZ Central.
Opinion: Two legal experts explain how a proposed abortion rights ballot initiative could impact current laws and practices in Arizona.
Slade Smith and Kirin Goff
An abortion rights group wants to send the issue directly to voters in November 2024.
The proposed ballot initiative would amend the Arizona Constitution to add a right to abortion similar to the right established by the U.S. Supreme Court in Roe v. Wade 50 years ago.
Since the Supreme Court overturned Roe last year, there is no federal constitutional right to obtain an abortion, leaving it up to the states to decide whether to allow or prohibit abortions.
In Arizona, the state constitution has never contained an explicit abortion right, nor have courts ever found its provisions to implicitly establish one.
The initiative, called the Arizona Abortion Access Act, would change that.
Initiative’s provisions are similar to Roe’s
The initiative would essentially codify the right established in Roe into the state constitution.
It would create a right to obtain an abortion anytime before viability — the point at which a fetus would have a significant chance of surviving outside the womb absent extraordinary measures.
Because of advancement in modern medicine, most fetuses now become viable at around 22 to 24 weeks.
The Legislature would only be allowed to regulate pre-viability abortions for the “compelling” purpose of protecting women’s health, and would be required to use the “least restrictive means” necessary to do so.
After viability, women would have a right to obtain an abortion if necessary to protect her life or her physical or mental health.
Arizona could restrict abortions, with limits
Otherwise, the state would be allowed to restrict or ban post-viability abortions to protect the fetus.
The treating health care professional would make the call as to whether a fetus is viable or whether an abortion is necessary to protect the woman’s life or health.
The abortion would be protected as long as the treating professional makes those judgments in good faith.
If a challenger were to claim in court that a particular abortion was not protected, these good-faith judgments would trump the hindsight of non-treating experts.
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It wouldn’t be enough for the experts to convince the court that the treating professional made an error in judgment; they would also have to show that the treating professional was dishonest, not reasonably diligent or otherwise lacked good faith.
These provisions largely reflect the right to abortion established in Roe, which established a woman’s full right to obtain an abortion before viability and a right after viability if necessary to protect her health, much as the initiative would do.
And like the initiative, Roe required that laws restricting abortion have a compelling purpose and narrow tailoring —the standard judicial strict scrutiny test that a law infringing on a fundamental constitutional right must pass to be constitutional.
15-week ban could be unconstitutional
The Supreme Court chipped away this part of Roe in 1992, when in Planned Parenthood v. Casey it replaced Roe’s strict scrutiny standard with a lesser standard that allowed laws regulating abortion as long as they advanced a legitimate purpose and did not unduly burden the right to obtain an abortion.
Casey allowed states to pass laws designed to discourage pre-viability abortions, such as Arizona’s mandatory 24-hour waiting period and its “informed consent” law that requires, among other things, that doctors describe to their abortion patients the anatomical details of the fetus to be aborted.
If the initiative passes, such laws would likely be deemed insufficiently tailored to protect a woman’s health and therefore unconstitutional.
Arizona’s two main criminal statutes regarding abortion would also likely be unconstitutional under the initiative.
Anticipating the Dobbs decision, the Arizona Legislature passed a statute in 2022 banning abortions beyond 15 weeks of pregnancy except in medical emergencies.
But an old criminal statute that banned nearly all abortions in Arizona before Roe also remains on the books, and some prosecutors, including former Arizona Attorney General Mark Brnovich, have argued that doctors can also be prosecuted under this old statute.
The Arizona Court of Appeals ruled against Brnovich in December and held that the pre-Roe ban did not apply to licensed physicians, but the Arizona Supreme Court recently decided to hear an appeal of that ruling. (We believe that the Court of Appeals interpreted the law correctly.)
Other abortion laws also could be moot
Limiting abortion care to licensed professionals with appropriate medical training would remain constitutional as a generally accepted way to ensure high quality health care while maintaining access.
Likewise, the state could continue to limit surgical abortions to licensed facilities in order to protect health.
But under the strict scrutiny standard, courts would closely examine challenged statutes, and it would be up to the state to provide convincing evidence that they are necessary and narrowly tailored to protect women’s health.
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Many current statutes would likely fail that test.
For example, Arizona’s current statutes that prohibit physician assistants and nurse practitioners from performing abortions would likely be held unconstitutional, unless the state were able to convince the courts that these practicing professionals could not safely provide care.
If the initiative passes, the Legislature could choose to amend current statutes to conform with the constitution, but they wouldn’t have to.
Indeed, the Legislature left the pre-Roe ban in place for the entire Roe era, even though the courts had declared it unconstitutional.
Court may weigh in, but intent is clear
It is not unusual for unconstitutional statutes to remain on the books, and they often do not present much problem as long as it’s understood that they are unconstitutional and nobody tries to enforce them.
Because abortion is so controversial, however, the constitutionality of many current abortion statutes would likely be disputed until courts settle matters.
Nonetheless, we believe the language in the amendment would achieve its proponents’ goals: a robust and permanent right to obtain an abortion.
Assuming the initiative garners enough signatures and gets on the ballot, Arizona voters will have a clear choice next year based on whether they support or oppose an abortion right.
Slade Smith, JD, and Kirin Goff, JD, MA, are assistant director and director of University of Arizona’s Applied Health Policy Institute, Mel & Enid Zuckerman College of Public Health. Reach them at [email protected] and [email protected]. This column reflects the opinions of the authors based on their legal knowledge and experience, and does not represent the views of the University of Arizona.