Arizona faces struggle, uncertainty around abortion, even after repealing the 1864 ban

A Texas woman was forced to leave the state to end a nonviable pregnancy, a procedure her doctor said she needed. Doctors are consulting with administrators and lawyers before providing emergency treatment to pregnant patients. A woman in Florida was forced to deliver a stillborn fetus alone in a bathroom, and suffered life-threatening blood loss. 

These are just a few examples of the consequences of strict abortion bans put in place in other states that abortion rights advocates say will face women and health care providers in Arizona if a Civil War-era abortion ban goes into effect next month. 

On April 9, the Arizona Supreme Court ruled that a near-total abortion ban first enacted in 1864 was enforceable, causing an uproar from reproductive rights advocates — and some Republicans who, though they are anti-abortion, recognized that backing such a restrictive ban would not be politically popular. 

The state Legislature then entered into a weeks-long struggle, with Democrats — joined by a total of five Republicans — ultimately voting to pass a repeal of the ban. However, like nearly every law that lawmakers have passed this year, the repeal won’t take effect until 90 days after the end of the annual legislative session. As budget negotiations move slowly, there’s no indication the session will end soon.

So, unless the state Supreme Court grants a stay in the case, the ban could be in effect for months before the repeal becomes law. 

On Wednesday, a group of Arizona doctors and abortion access advocates from the Committee to Protect Health Care urged voters to support the Arizona Abortion Access Act that’s expected to be on the November ballot. It would enshrine access to abortion until the point of fetal viability (around 24 weeks of pregnancy) as a right in the state constitution. 

The Committee to Protect Health Care is a national advocacy group and political action committee made up of thousands of doctors which fights to expand health care access, lower costs and to protect reproductive freedom. 

“Politicians with no medical training or expertise shouldn’t be interfering in emergency departments or exam rooms,” Dr. Atsuko Koyama, an abortion provider at Camelback Family Planning in Phoenix and pediatric emergency medicine physician, said during the Wednesday press call.

Neither the 1864 ban, nor the 15-week ban that is currently the law, contain exceptions for victims of rape and incest. The 15-week ban, passed by Republicans in 2022, will go back into effect when the older ban is repealed 

“The only exception  is an ambiguous one that’s left to broad interpretation, which is to save a woman’s life,” said Dr. Cadey Harrel, a Tucson family physician and the Arizona lead for the Committee to Protect Health Care. 

Harrel said that she fears the 160-year-old ban will force women who don’t have the money to leave the state for care — even those who are victims of horrific crimes, or whose pregnancies aren’t viable — to remain pregnant against their will. 

“Arizonans deserve better than this, they don’t deserve either of these fates,” she said. “They don’t deserve to have politicians playing games with their health, freedom and their livelihoods.”

Koyama pointed out that what is considered a medical emergency isn’t always black and white, and not every emergency is immediately life-threatening. She said the bans are meant to “confuse and instill fear among physicians,” which results in delayed care, and even death. 

She said that these bans force doctors to ask themselves questions like: “Is this patient close enough to death to intervene? How sick does my patient have to become before I can take the action that I know will save their health, future fertility or life? If I provide this blood transfusion or stabilizing medication, will this patient then become less close to death and be unable to have a life-saving abortion?”

The abortion provider said she’s seen countless examples of emergency abortions saving patient lives, such as when a patient had a premature rupture of membranes at 17 weeks of gestation, and was experiencing signs of severe infection. The patient was at risk of becoming septic, which could cause infertility and death. 

“For all Arizonans, this is an issue of personal freedom, privacy and for many of our patients, it’s an issue of health,” Koyama said. 

Tucson psychiatrist Jasleen Chhatwal said the mental health issues that abortion bans can cause should not be understated. 

“Banning access to safe and legal abortions forces women into potentially dangerous situations, increasing the risk of emotional distress, trauma, and long term psychological consequences,” she said. 

Chhatwal shared the story of a Texas woman Kate Cox, who, along with her doctor, sought legal permission to terminate a nonviable pregnancy in December 2023. The Texas Supreme Court denied their request and she was forced to go out of state to get an abortion. 

“She’d been in the emergency room four times in one month for pregnancy complications, her health and future fertility at risk,” Chhatwal said. 

She also shared what happened to Florida woman Anya Cook in 2022, whose water broke at 16 weeks, just past the 15-week ban then in place. But because the fetus still had cardiac activity, doctors in the emergency room couldn’t perform an abortion.

“Because of Florida’s abortion ban, Anya was forced to deliver a stillborn fetus alone in a bathroom, losing so much blood it threatened her life,” Chhatwal said. “These tragic, horrific stories should not happen anywhere and they shouldn’t happen here in Arizona. But they will continue to happen if we leave reproductive freedom up to political will.”

Dr. Valerie Sorkin-Wells, a retired Scottsdale OBGYN and professor of obstetrics and gynecology, asked voters to support the Arizona Abortion Access Act in November, to restore the abortion rights afforded to women via Roe v. Wade until the U.S. Supreme Court struck it down in June 2022. 

“The Arizona Abortion Access Act is based on Arizona values and that Arizonans have the right to individual autonomy, including the right to make their own health care decisions without unnecessary government interference,” Sorkin-Wells said. 

She also countered an oft-repeated claim by anti-abortion activists: That because the act would allow the abortion after fetal viability — to protect the physical or mental health of the woman — it would allow abortions up until the point of birth. 

“Abortions up to term is not a thing,” Sorkin-Wells said. “Nobody does abortions up to term. The idea is not to have a gestational age requirement so that physicians are able to make decisions in our exam rooms and with patients without political interference.” 

Some mental health reasons that might require abortion after 24 weeks, she said, include instances of suicidal ideology, substance abuse disorders and drug overdoses. Abortion might be necessary after that point, as well, for very young victims of sexual assault who don’t know they’re pregnant until after the point of viability, Sorkin-Wells said. 

The other side 

While abortion rights proponents work to get the word out about their November ballot initiative, anti-abortion activists are laboring to persuade the Arizona Supreme Court not to put a hold on implementation of the 1864 ban, as Democratic Attorney General Kris Mayes and Planned Parenthood Arizona have both requested. 

The court quickly shot down Mayes’ initial request to reconsider its April 9 decision, but has not yet made a decision on requests from the attorney general and Planned Parenthood to delay enactment of the near-total ban until she decides whether to appeal it to the U.S. Supreme Court. 

On Tuesday, attorneys representing Dr. Eric Hazelrigg, an obstetrician and the medical director of Choices Pregnancy Center, and Yavapai County Attorney Dennis McGrane filed a motion asking the court to enact the ban, which they say is the true will of the state Legislature. 

In the filing, Hazelrigg is described as “guardian ad litem (a court appointed guardian) of all Arizona unborn infants.”

Choices Pregnancy Center is a nonprofit based in the Valley which provides free pregnancy care and information, but does not provide or refer for abortions. 

“Life is a human right, and Arizona’s pro-life law respects that fundamental right,” Jake Warner, a lawyer for the Alliance Defending Freedom, wrote in the filing. “…Arizona’s pro-life law has protected unborn children for over 100 years, and while we are deeply saddened by the legislature’s recent vote to repeal the law, it won’t take effect immediately, as the legislature intentionally decided. We are urging the Arizona Supreme Court to allow the state’s pro-life law to protect as many innocent unborn children as possible.”

The Alliance Defending Freedom is a conservative Christian legal advocacy group. 

In the filing, Warner argued that the Arizona Legislature could have included an emergency clause in the repeal, which would have allowed it to be enacted immediately, but it didn’t. In his view, Warner said that means the legislators don’t want the repeal to go into effect immediately. 

“In truth, the legislature had insufficient votes to prioritize abortion providers over unborn children for the next few months,” Warner wrote, adding that he doesn’t think delaying the law’s enactment will honor “the will of the Arizona electorate.”

“Respondents seek unjust delay,” he wrote. “They also seek judicial approval for abortions the legislature has forbidden.”

Warner asked the court to deny the requests from Mayes and Planned Parenthood and to instead move forward with enactment of the ban.