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
Arizonans overwhelmingly voted to make abortion a fundamental right, but overturning the state’s current 15-week gestational ban — and multiple other anti-abortion laws still on the books — isn’t automatic.
Just an hour after she joined Gov. Katie Hobbs, Secretary of State Adrian Fontes and Arizona Supreme Court Chief Justice Ann Timmer on Monday to certify the results of the 2024 general election, Attorney General Kris Mayes said that officially nullifying the 15-week ban will need to take place in the courts. And, she added, while her office considers the certification of Prop. 139, the abortion rights ballot measure that netted more than 60% of the vote, as sufficient to restore access to the procedure, the reality is that some providers might continue to hesitate until legal protections are more firmly established.
“The position of the state of Arizona is that the passage of Prop. 139 makes the 15 week ban…unconstitutional,” she said, during a news conference held to celebrate the ballot measure’s success. “As of 10:12 am when the governor signed the certification, it became unconstitutional. That is a separate matter from whether doctors and providers will be comfortable performing abortions after 15 (weeks).”
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The gestational ban outlaws abortions beyond its deadline unless a doctor deems one is necessary to preserve a woman’s life or prevent the impairment of a “major bodily function”. Doctors who violate the 2022 law, passed by legislative Republicans, face the suspension of their medical license, and a class 6 felony, which could result in a prison sentence between 4 months and 2 years. Prop. 139, meanwhile, prohibits the prosecution of abortion providers, and allows the procedure to be performed until fetal viability, generally considered to be around 23 and 24 weeks. It also includes an exception for abortions performed past that point if a provider makes a good faith judgment that one is necessary to safeguard a woman’s life, physical or mental health.
Dr. Paul Isaacson, the co-owner of one of a handful of private abortion clinics in the Valley, said he expects a lawsuit to be filed soon aimed at rescinding the gestational ban. Isaacson has been a part of multiple lawsuits challenging the legality of Arizona’s anti-abortion laws, including the 1864 near-total abortion ban that was briefly revived earlier this year, and a 2021 law that banned abortions performed because of fetal genetic abnormalities. He offered a cautious view of the future of abortion care in Arizona, saying that the focus is now on what happens in the courts.
“The legal advice I’m getting is that we’ll file a viable lawsuit and hope that we get a very quick resolution to it,” he said.
Among the laws Isaacson said he would like to see invalidated in the wake of Prop. 139’s success are the fetal genetic abnormality ban, a mandatory 24-hour waiting period, and an “informed consent” law that requires providers to speak with patients about alternatives to abortion, including adoption as well as the father’s financial responsibility.
Mayes said her office expects a lawsuit challenging the legality of the 15-week law to be filed as soon as Monday, and said the state of Arizona would side with those seeking to restore access. But the work to untangle and void the rest of Arizona’s anti-abortion laws will likely stretch into the next few years, she said. And, she added, her office also plans to fend off attacks to reproductive rights from the federal government.
Allies of President-elect Donald Trump have signaled an interest in mobilizing a series of dormant federal laws from 1873 to eradicate abortion care across the country, although Trump has said decisions on abortion should be left up to the states. The Comstock Act prohibits the mailing of abortifacients and could be used to block the transport of abortion pills. In Arizona, more than half of all abortions are medication abortions. Trump has also said he would be open to revoking the FDA approval of mifepristone, the abortion pill used in the vast majority of medication abortions.
Mayes, who campaigned on a promise to protect abortion access and has previously mobilized her office to join lawsuits in support of mifepristone, said that she would oppose efforts from the incoming administration to infringe on the will of Arizona voters.
“My office and the state of Arizona will fight that tooth and nail,” she said. “We will not allow that to happen.”
For now, the decision of Arizona voters to protect abortion care remains intact. And that voter-protected shield was cause for celebration from state leaders and local providers.
“Arizonans said in this election that they have had enough of these out-of-touch politicians trying to force their beliefs on us and make medical decisions for us. With the power of our votes we made our voices heard,” Hobbs said.
In the aftermath of the rescinded federal protections, reproductive rights advocates warned that hostile states could see their number of medical providers shrink. And studies appeared to bear that out: a review of residency applications across the country by the Association of American Medical Colleges found that anti-abortion states received far fewer applications from future OB-GYNs and emergency physicians. In Arizona, the number of OB-GYN applications plummeted by 26.4% in the 2023-2024 application year — the worst rate in five years.
Dr. Misha Pangasa, an OB-GYN based in Mesa, said that the early support for Prop. 139 helped convince her to return to the state she grew up in after hesitating when Roe v. Wade was toppled by the U.S. Supreme Court more than two years ago.
“I really didn’t know if I could practice medicine in a place where politics ruled over medicine in such a huge way,” she said. “I didn’t know if this was the place where I could have the confidence to build my own family.”
For Morgan Finkelstein, who was forced to travel out of state to receive abortion care, Prop. 139 is a critical protection for Arizona women across the state and in the future who may suffer complicated pregnancies. In 2020, even when the procedure was still a federal right,
Finkelstein experienced firsthand the limited access to abortion care in Arizona when the only in-state provider who could help her when one of her twins was discovered to have a fatal heart defect couldn’t fit her into their schedule. In the end, Finkelstein was able to obtain a multifetal pregnancy reduction in California, but not until after spending stressful days waiting for an appointment and spending thousands of dollars to receive necessary medical care.
“My pregnancy and birth was traumatic enough without having to leave Arizona for critical health care that was even technically legal at the time,” she said. “Our overall sense of safety and basic human dignity was compromised by the state we love and call home. And yet it could have been so much worse. The passage of Prop. 139 means that countless expectant mothers in a situation like mine won’t have to experience my nightmare or worse.”
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