If the U.S. Supreme Court upholds Missouri’s 15-week abortion ban, gutting a significant portion of Roe v. Wade, Arizona already has an old law on the books ready to go banning abortion. The U.S. Supreme Court appears very likely to do so in Dobbs v. Jackson Women’s Health Organization, leaving much of abortion regulation to the individual states. Roe v. Wade prohibited the states from restricting abortion before fetal viability, around 23 weeks. It is expected that 26 states will then start restricting abortion as early as 15 weeks.
When Arizona was a territory, a law was passed in 1901 banning abortion. A.R.S. 13-3603 punishes the facilitation of an abortion with two to five years in prison. A woman who attempts to obtain one, whether successful or not, unless necessary to save her life, was penalized by one to five years in prison. That law was repealed this year by the Arizona Legislature.
Cathi Herrod, the president of Center for Arizona Policy and responsible for drafting much of Arizona’s pro-life legislation within the past 15 years, explained the distinction. “The pro-life movement loves them both: the woman and the pre-born baby,” she told KJZZ. She said that the laws should be aimed at “the abortion industry (that) takes advantage of women in a vulnerable situation.”
Arizona has some of the most significant restrictions on abortion in the country. This past year, Gov. Doug Ducey signed a law, SB 1457, that bans abortions based on “genetic abnormalities” such as Down syndrome. Part of the law is currently on hold due to a legal challenge. U.S. District Judge Douglas Rayes, who was appointed to the bench by Barack Obama, refused to allow a “personhood” provision in the law that said the state will interpret all laws to confer rights on unborn children. Personhood laws have proven difficult to stand up to legal challenges, resulting in some pro-life advocates taking other routes to restrict abortion instead.
Abortion proponents are preparing for a defeat at SCOTUS. The Guttmacher Institute, which advocates for abortion, created a map showing where women from the 26 states expected to limit abortion can drive to in order to get an abortion in a state that has few restrictions. Eloisa Lopez, executive director of Pro-Choice Arizona, told USA Today, “The future of our state is very uncertain now.”
While the Supreme Court is known for often adhering to precedent, it has reversed some significant decisions like Plessy v. Ferguson and Dred Scott v. Sandford. Technology has evolved considerably since Roe was decided in 1972, allowing people to learn more about how much a fetus has developed into a full baby in the womb. Several states passed heartbeat abortion bans in recent years due to discovering that a fetus’s heart starts beating at six weeks of pregnancy. None of those bills have gone into effect yet due to legal challenges.
With Republicans controlling both chambers of the legislature and the governor’s office in Arizona, it is all but certain abortion will become more restricted within the state if SCOTUS upholds the Mississippi law. Ducey encouraged the court to do so. “The court needs to do its job. The court needs to follow the Constitution,” he told Newsweek. “And when the court discovers that a mistake has been made in the past, the court has the right to correct it.”
Both Ducey and Arizona Attorney General Mark Brnovich joined separate amicus curiae briefs with other governors and attorneys general defending Mississippi’s abortion law.
The Supreme Court’s ruling is expected in late July. The state of Mississippi is asking the court to go even further and declare that Roe and its successor rulings are no longer precedent. Some states have already approved “trigger” laws banning abortion that will go into effect immediately if the Supreme Court upholds Mississippi’s law.
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