By: Natalia Sells

The Supreme Court’s reversal of Roe v. Wade this summer has created a flurry of states rushing to limit or totally ban abortion access, leaving those directly affected in a confusing mess. Since Roe’s reversal, thirteen states have mostly banned abortion and about half the states are projected to further limit access either via a ban or by placing limits based on the gestational time period. Arizona’s abortion political process represents the legal mess the Supreme Court has bestowed upon states that has left their constituents both confused and unprotected.  

The Arizona legislature and judicial system’s recent game of hot potato with abortion access has created a dystopian of conflicting regulations that represents how little the state accounted for health and safety when they made ending abortion access their mission. The overruling of Roe has sent states like Arizona into a spiral of textual interpretation of laws from literally a different century. This has resulted in abortion flipflopping between being legal and illegal every other week since September 2022.

Timeline of Arizona’s Abortion Status

On September 23, 2022, abortions came to an abrupt halt in Arizona when Pima County Superior Court Judge Kellie Johnson lifted a 1973 injunction on a law that bans all abortions except when the pregnant person’s life is at risk. This reinstatement conflicts with Arizona Governor Doug Ducey’s signage of Arizona S.B. 1164 on March 30, 2022 which bans all abortions past fifteen weeks, except in a medical emergency. The bill was set to go into effect that very same week. Arizona’s bill makes it a class 6 felony for medical practitioners to perform an abortion after the fifteen-week gestation. Violation could result in their medical license being suspended or even revoked.

Johnson’s reasoning for their ruling was that the text of S.B. 1164 does not repeal the pre-statehood ban and therefore the ban shall be enforced. Johnson’s decision stems from the Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization that ended the constitutional right to an abortion by overruling Roe v. Wade. The Arizona injunction on the abortion ban was enacted based on the ruling of Roe that granted women the constitutional right to an abortion. And despite decades worth of state legislation, Johnson decided the best course of action was to place the court in the role of the legislator and further the anti-abortion agenda by reinstating a ban that pre-dates Arizona. In addition, despite saying the fifteen-week gestation law takes precedence, Governor Ducey’s lawyers have not sought to enforce said point in court.

On October 7, the Arizona Court of Appeals sided with Planned Parenthood by stating that the injunction on the abortion ban should not have been lifted and a hearing will be set to clarify what law to enforce. This has made it legal, for the time being, for abortion care to restart. Planned Parenthood Arizona, Inc. has since been updating the status of abortion access in Arizona on their website.

Where do we go from here?

States where abortion access is being terminated on a whim and at expedient rates, constituents like myself are left wondering where do we go from here? Constitutional law teaches students states compete by having people vote with their feet by moving to other states that better align with their values. But what about the scared teenager? Or the assaulted victim? Or the family that can’t support another person? Or simply just the person who knows subjecting their body to give birth is not for them? It is clear that the legislators and courts did not truly think about them when they terminated a right that the affected people have enjoyed for most if not all their lives. The Supreme Court reasons that this was an issue left to the states and that some were “liberalizing their laws” prior to Roe and its enaction “abruptly ended that political process”. However, the “political process” the Court speaks of has shown it to be a hot mess that the state legislature and state courts cannot agree upon despite being the same political party.

Let Arizona’s poor legislative language and the judiciary’s overreaching power be an example of how ill-equipped states are at regulating abortion. What was once a constitutional right to choose what one does with their body now rests in the hands of ill judicial interpretation and lazy legislative writing.

Some Available Resources:

Planned Parenthood Arizona Inc.: https://www.plannedparenthood.org/planned-parenthood-arizona

AbortionFinder.org: https://www.abortionfinder.org/

National Network of Abortion Funds: https://abortionfunds.org/need-abortion/

Natalia (she/her) is currently a 2L at Arizona State University’s Sandra Day O’Connor of Law. She graduated from Fort Lewis College with a B.A. in Business Administration and a minor in Communications. Her legal interests are primarily in Indian Law, policy, and education. Natalia enjoys early mornings jogs, hiking, and exploring different Indigenous events throughout Phoenix.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.