Health Law Checkup

            In a 5-4 decision on Friday, June 24, 2022, the United States Supreme Court overturned Roe v. Wade. As a result of the ruling, many individuals across the country will not have access to abortions within 30 days and many states have laws that will ban abortions effective immediately.^[1] However, the legal landscape for both patients and providers in Arizona is less clear.

            With Friday’s ruling, many reproductive health and abortion providers have halted abortion procedures for women in Arizona, citing the complexity of this state’s current entanglement of laws.

            The first issue comes from a 1901 law that was passed before Arizona was even a state. The Territorial Legislature’s law made it illegal to perform an abortion or administer any medication that induced a miscarriage unless the procedure was being used to save a woman’s life. Any person who violated this law could be punished with a two-to-five-year prison sentence.^[2] In 1973, the pre-Roe law was superseded by Roe v. Wade, found to be unconstitutional by the Arizona Court of Appeals, and was subsequently enjoined by an Arizona superior court judge.

            In March 2022, the Arizona legislature approved Senate Bill 1164, which prohibits doctors from performing abortions after 15 weeks of gestation in the absence of a medical emergency (i.e., to save the mother’s life). This bill has no exceptions for rape or incest. The bill states that healthcare providers who violate S.B. 1164 could be charged with a Class 6 felony and could have their license suspended or revoked. Women, however, would be protected from prosecution under the law.

            S.B. 1164 is set to take effect 90 days after Arizona’s legislative session ends. Assuming the law is not blocked by the courts, it will take effect on September 29, 2022. Notably, S.B. 1164 does not repeal Arizona’s pre-Roe law. However, some have questioned whether S.B. 1164 supersedes Arizona’s territorial abortion law.

            On Friday, United States Attorney General Merrick Garland issued a statement articulating that the FDA has approved the use of Mifespristone, frequently used in medically-induced abortions, and that states may not ban Mifespristone based on a disagreement with the FDA’s expert judgment about its safety and efficacy.^[3] In December 2021, the FDA determined that Mifespristone could be prescribed via telemedicine and shipped via mail. However, approximately 19 states have laws that either ban or limit the use of telemedicine to administer medications for medical abortions. Arizona is one such state. In the coming months, there may be an increased effort in addressing some of these issues through telehealth prescribing laws and enforcement actions.  

            Some groups in Arizona are advocating for a new constitutional amendment through a ballot initiative, which would create a right for Arizonans to make decisions about abortion, contraceptive, prenatal care, childbirth, infertility care, and related reproductive services. To appear on the November ballot, any initiative would need to obtain 356,467 signatures by July 7, 2022.

            Currently, there is no law prohibiting abortion in Arizona as the territorial law is still enjoined and S.B. 1164 is not yet in effect. Out of an abundance of caution, some providers have stated that they will not perform medical or surgical abortions until Arizona courts provide clarity or the new law goes into effect. In the interim, many Arizona healthcare providers are working with out-of-state groups to connect women with providers, services, travel, lodging, and financial support so that Arizonans can get access to reproductive healthcare while the legal landscape remains murky in this state.  Given the state of the law, consultation with legal counsel on these issues should be considered before taking any action. 

[1] In 16 states, abortion is illegal or will be under “trigger laws” and pre-Roe bans that will now go into effect since Roe v. Wade has been overturned. https://www.politico.com/news/2022/06/24/abortion-laws-by-state-roe-v-wade-00037695.

[2] See A.R.S. § 13-3603: “A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”

[3] https://time.com/6191270/abortion-pills-bans-fda-merrick-garland/.