A protestor holds a sign at an April 14, 2024, protest in favor of reproductive rights and abortion access in Scottsdale. Photo by Gloria Rebecca Gomez | Arizona Mirror
With less than two weeks left before Arizonans decide the fate of a ballot measure that seeks to establish abortion access as a fundamental right, health providers urged voters to support it.
“Prop. 139 guarantees the right to abortion and puts health care decisions where they belong: with patients, their families, and their health care providers who are highly, highly trained to provide reproductive health care,” said Dr. Laura Mercer, during a virtual roundtable on Tuesday hosted by the Committee to Protect Health Care.
The Committee is a progressive national organization made up of more than 20,000 doctors and advocates that has been a strong proponent of abortion rights this election cycle, particularly in Arizona, where the future of the procedure in the state will be decided in November. Over the summer, the group released a letter signed by 550 Arizona-based medical professionals in support of Proposition 139, dubbed the “Arizona Abortion Access Act”.
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The measure would enshrine abortion as a right in the state constitution. If passed, the Grand Canyon State’s current 15-week gestational ban would be struck down. Instead, providers could perform a procedure without the looming threat of a class 6 felony until fetal viability, generally regarded to occur between 23 and 24 weeks — and beyond that point if they determine it’s necessary to preserve the patient’s life, physical or mental health.
Mercer, an OB-GYN with more than two decades of experience and training, said that the decision-making around whether to obtain an abortion is incredibly personal and complex, and it should be left up to the patients and their doctors, not lawmakers with no medical degrees.
“Politicians just shouldn’t be involved in making these critical health care decisions for women,” she said.
And while critics of the proposal have sought to stir up voter opposition by saying that its passage could lead to the elimination of safety precautions, such as the requirement that abortions be performed only by qualified health care providers, Mercer dismissed those claims. Prop. 139, she said, does no more than establish a constitutional right to seek an abortion.
Attorneys for the campaign behind the proposal have said that other anti-abortion laws might come into play, including laws intended to impose barriers to access, like a mandatory ultrasound requirement and a 24-hour waiting period. But removing them from the books would ultimately require going to the courts.
Tucson-based family physician Patricia Lebensohn called for the overturning of the 15-week abortion ban because it leaves victims of rape and incest in the lurch. The law includes exceptions for procedures performed to save a woman’s life or to prevent the impairment of a “major bodily function,” but no recourse is given to women dealing with unwanted pregnancies that resulted from assault or abuse if they are past the 15-week deadline.
“No one should be forced to carry their attacker’s child,” Lebensohn said.
For Dr. Paul Isaacson, the co-owner of Family Planning Associates Medical Group, one of a handful of private abortion clinics in the Valley, the most concerning effect of the 15-week law is its potential to lead to delayed care. Across the country, the criminalization of abortion has been followed by hesitancy from doctors facing revoked medical licenses or even prison time. In Georgia, where doctors were threatened with a decade in prison for performing unlawful abortions, at least two women have died as a result of delayed emergency care.
Twenty-eight -year-old Amber Nicole Thurman died from an infection stemming from an incomplete abortion that could have been prevented by a dilation and curettage procedure — a routine procedure in which fetal tissue is removed from the uterus. Commonly called a D&C, the treatment has long been used in both miscarriage and abortion care, but in recent years has been more frequently associated with abortions and led to hesitancy among doctors fearful of legal repercussions.
Isaacson warned that Arizona’s abortion ban risks the health of women across the state because it puts health care providers in difficult positions, forcing them and their lawyers to weigh appropriate medical care against the possibility of criminalization.
“Doctors like me are forced to ask: ‘How close to an emergency or death must the patient be before I can intervene?’” he said. “‘Should I use my medical expertise to protect her health, her life and her future fertility, knowing that a politician or a prosecutor with no medical knowledge may disagree with my decision?”
In June, Arizona Attorney General Kris Mayes released a legal opinion aimed at clarifying the circumstances under which doctors can provide abortions without fearing prosecution. The Democrat and long-time advocate of abortion rights concluded that a provider’s sincere belief that an abortion is warranted to address a medical emergency is enough to shield them from criminalization. While a legal opinion from the state’s top prosecutor is significant, it’s still just an opinion and not a legal defense if a doctor is taken to court in the future. It also isn’t a permanent fix and future attorneys general aren’t obligated to agree with it.
For now, it’s unlikely that any Arizona doctor will face prosecution for providing an abortion. Last year, Gov. Katie Hobbs issued an executive order centralizing all prosecutorial authority over abortion law violations in the state attorney general’s office, virtually guaranteeing no lawsuits will ever be brought against abortion providers while Mayes remains in office. She has vowed never to take any health care provider to court over the state’s abortion laws and Hobbs’ executive order eliminated the ability of any of the state’s 15 county attorneys from doing so on their own.
But that protection, too, is dependent on who leads the state.
The most effective way to get rid of the 15-week law looming over Arizona doctors, according to Isaacson, is enshrining abortion as a right in the state constitution by backing Prop. 139.
“It will put an end to Arizona’s dangerous and devastating abortion ban, to ensure a patient’s needs — not politics — drive important medical decisions,” he said.
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