By James G. Hodge, Jr. and Jennifer L. Piatt
Surrounding the U.S. Supreme Court’s withdrawal of the longstanding constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization on June 24, 2022, multiple state supreme courts have done their own “about face” on reproductive rights. Motivated perhaps by the infamous leaked decision in Dobbs, the Iowa Supreme Court reversed its 2018 decision finding abortion protections in the state constitution, concluding on June 17, 2022 that no such fundamental right exists. Following a January 2023 decision rejecting a 6-week statutory ban as violating the state’s constitution, a reconstituted South Carolina Supreme Court found the ban constitutional in August 2023. Florida’s Supreme Court protected abortion as a fundamental privacy right under the state constitution in 1989 only to reverse its view on April 1, 2024.
Most recently, on April 9, 2024 a majority of the Arizona Supreme Court resurrected an 1864 territorial law banning all abortions except to save the life of the pregnant woman in Planned Parenthood v. Hazelrigg. That decision thrust Arizona into the realm of 14 other states with the most stringent restrictions nationally – no abortions with virtually no exceptions.
State-based judicial determinations are reshaping the legal landscape by restricting abortion access previously assured under federal or state constitutional norms. Against these bleak developments, however, options to re-claim some abortion access post-Dobbs are rising. Constitutional ballot initiatives, legislative reforms, refusals to prosecute, gubernatorial pardons, and retention denials for justices are all in play in Arizona and elsewhere. Even the U.S. Supreme Court may offer a slight reprieve through its forthcoming decision on the legality of the abortifacient mifepristone even as it potentially disallows national access to emergency abortions under the Emergency Medical Treatment and Active Labor Act (EMTALA).
Charting a path back to the Supreme Court’s standard in Roe in Arizona or other restrictive states will not be easy, especially against steep political headwinds. As we examine below, it begins with an assessment of judicial determinations coupled with a recognition of available legal and political responses.
Resuscitating Antiquated Abortion Restrictions
In Hazelrigg, the Arizona Supreme Court enabled enforcement of a Civil War-era near-total- abortion-ban law initially passed by the territorial, all-male legislature in 1864. In so doing, the court rejected a 2022 15-week abortion ban statute and other post-Roe abortion laws. With specious legal reasoning, the Arizona court’s 4-2 majority decision led by Justice John Lopez IV centered on ambiguities the court found in the 2022 statute. The text of the statute, for example, failed to completely dispense with the 160-year-old total abortion ban (as per legislative construction notes) or affirm an explicit right to abortion.
Thus, concluded the majority, the legislature must (1) have preferred enforcement of the 1864 complete ban and (2) only passed the 15-week statutory ban in 2022 under protest to the then-controlling precedent Roe v. Wade (1973). Pursuant to the court’s dubious logic, all abortions in the state under the antiquated 1864 ban were thus deemed unlawful “except those necessary to save a woman’s life.”
Former Arizona Governor Doug Ducey (R), who signed the 2022 statute, immediately disagreed with the court’s findings. So did Vice Chief Justice Timmer and Chief Justice Brutinel in dissent. They would have allowed physician-performed abortions up to 15 weeks gestation under the clear language of the 2022 statute. They seriously questioned the majority’s intimation that the legislature only passed the 15-week ban because Roe required some level of protection. That suggestion makes little sense, as Roe constitutionally required access to abortions through fetal viability around 24 weeks, well beyond the 15-week ban’s limitation.
Even though the majority sent the case back to the lower court for adjudication of any remaining constitutional issues, Arizona’s 1864 abortion ban, punishable by 2-5 years’ imprisonment, is due to take effect on June 8, 2024 absent interventions. Hazelrigg is already having a chilling effect on providers and patients. With over 1.4 million women of childbearing age and over 13,000 abortions in Arizona reported in 2020 (pre-Dobbs), thousands of health providers will be at risk of criminal prosecution for performing abortions.
Response, Resistance and Reclamation
Arizonans are not standing idle in the wake of Hazelrigg. A 2022 poll suggested that 71% of Arizona voters oppose the criminalization of abortion allowed by the court in Hazelrigg. Like residents in other abortion-restrictive states, they are demanding action. Rapid resistance through concerted legal and policy approaches seeks to reclaim what was lost.
Even as the Arizona Supreme Court was mulling over its decision for months, advocates were collecting hundreds of thousands of signatures to advance a pro-abortion ballot initiative for the November 2024 election. Akin to successful efforts in Vermont and Michigan, and a similar initiative in Florida, Arizonans may vote to enshrine in the state constitution reproductive freedom before viability consistent with Roe.
Recognizing the political pitfalls of highly-restrictive anti-abortion stances in Arizona, even former President Trump, Vice President Pence, and current Arizona Senatorial candidate Kari Lake (R) now endorse compromise legislation despite their general anti-abortion stances. Although the Arizona State Legislature is Republican-led in both houses, repeal bills proposing to undo Hazelrigg surfaced with limited bipartisan support and passed the House on April 24, 2024. However, if Roe is the goal, the current bill is only a partial fix. It repeals the 1864 act but leaves intact the 2022 statutory ban that failed to include exceptions beyond 15 weeks in cases of rape or incest.
Still, Arizona Governor Katie Hobbs (D) stands ready to sign appropriate legislation re-instating the 2022 15-week ban. She also has the capacity to pardon anyone convicted of unlawful abortions. Governor Hobbs previously consolidated authority over such prosecutions in State Attorney General Kris Mayes (D), bypassing city and county prosecutors despite their objections. Mayes has affirmed her intent to obviate all prosecutions, drawing ire from some Republican legislators.
The prospect of additional judicial challenges lingers as does the possibility of voter-selected retention denials for Justices Bolick and King, who both sided with the majority in Hazelrigg. Assessing the potential loss of two conservative justices, Republican state legislators have proposed altering the state’s judicial recall elections system to allow retention votes only when appellate judges and justices violate principles of “good behavior,” instead of every 6 years as currently required. If implemented, this retroactive legislative ballot initiative would negate voters’ abilities to remove justices this November.
The Road Back to Roe
Finding routes back to the abortion protections advanced over 50 years ago in Roe face an onslaught of state-based legislative and judicial efforts to limit access. And while each factor noted above playing out in Arizona and elsewhere has potential to reclaim Roe-based protections, these measures may not be enough, even collectively.
National clarity on the scope and breadth of basic protections of abortion access is desperately needed. Absent unlikely legislative fixes among divided houses of Congress, clarity on some issues soon may be derived from the original source of harm itself, the U.S. Supreme Court. In the first of two pivotal decisions this term, the Court will decide whether FDA properly expanded access to mifepristone. In oral arguments it appeared that the case might fail due to lack of standing. More pressing is the Court’s determination whether EMTALA preempts restrictive state abortion laws which only allow for life-saving exemptions, and not health-saving ones.
For all the damage caused by Dobbs, at least the Court has not embraced fetal personhood rights under due process. Such interpretations would require the Court to backtrack on its own federalism-bent logic in Dobbs that authorized states to craft abortion policies. At least for the immediate future, assuring access to abortions at a level commensurate with Roe lies with law- and policy-makers – and voters – across the states. In Kansas, Kentucky, Ohio, Virginia and elsewhere the will of the body politic is crystalizing a path back to basic reproductive rights and promotion of maternal health and safety.
James G. Hodge, Jr., JD, LLM, is the Peter Kiewit Foundation Professor of Law and Director, Center for Public Health Law & Policy, at the Sandra Day O’Connor College of Law, Arizona State University (ASU).
Jennifer L. Piatt, JD, is a Research Scholar and Co-Director with the Center for Public Health Law & Policy, at the Sandra Day O’Connor College of Law, ASU.
The authors thank Lawrence O. Gostin, JD, Distinguished University Professor and Founding O’Neill Chair in Global Health Law, O’Neill Institute for Global and National Law, Georgetown University Law Center, for his review and suggestions for this commentary.
