Arizona nurses say Prop. 139 should give them the right to perform abortions

Nearly twenty years ago, Republicans in Arizona passed laws barring nurses from providing abortions. That could change under the state’s newly adopted right to abortion, but it will be almost a year before a judge will get a chance to render a verdict. 

In February, the Arizona branch of the American Civil Liberties Union filed a lawsuit in Maricopa County Superior Court on behalf of two nurses and two midwives claiming that multiple laws which hinder the ability of advanced practice clinicians like them to provide abortion care or outright ban them from doing so are unconstitutional. 

The organization’s argument relies on Proposition 139, a voter-approved initiative that won overwhelming support two years ago, to call for the restrictions to be struck down. The initiative added the right to abortion to the Arizona Constitution, and it forbids the state from adopting or enforcing any law that denies or interferes with that fundamental right. 

While reproductive rights advocates are hopeful the case could dramatically increase access to the procedure, a resolution may be years away: A hearing to determine when a trial can be held has been scheduled for April 2, 2027. 

Amanda Mollindo, a spokeswoman for the Arizona chapter of the ACLU, said the prolonged wait time is likely because of how much evidence needs to be collected first. The lawsuit is challenging nearly four dozen laws limiting the ability of nurses and physician assistants to help perform abortions. 

Arizona law prohibits anyone but a qualified doctor from providing medication or surgical abortions. And a bevy of other laws require a doctor’s presence during routine interactions with patients, like conducting physical exams before a procedure, estimating a fetus’s gestational age or performing ultrasounds. 

In their lawsuit, reproductive rights attorneys argue that mandating a doctor’s involvement in tasks that nurses and physician’s assistants are trained to handle unnecessarily prolongs the procedure and is intended to narrow access to it. 

In addition, state law bars nurses from performing abortions that are intended to terminate a pregnancy, but are allowed to perform near identical procedures during ectopic pregnancies or miscarriages. The treatment for miscarriages often includes uterine aspiration, which is commonly used during first trimester abortions. 

Lindsey Huang, an attorney for the group of nurses and midwives, urged the court to block the state’s prohibitions that prevent them from providing abortion care. She called the restrictions, known as the “APC Ban,” “unjustifiable” under the fundamental right to abortion adopted by voters in 2024. APC stands for advanced practice clinicians, which includes advanced nurse practitioners or physicians assistants. 

“Because the APC Ban restricts and interferes with Arizonans’ ability to obtain pre-viability abortion, and because it does not protect patients, is inconsistent with evidence-based medicine and clinical standards, infringes on patient autonomy, and penalizes Plaintiffs for assisting Arizonans seeking an abortion, it plainly violates the (constitution),” Huang wrote. “Indeed, such a restriction has no place in a state whose citizens voted to enshrine fundamental reproductive rights in their constitution.”

Huang pointed out that, before the laws were passed, abortion was accessible in clinics operating across five counties. Today, that access has largely shrunk to just two counties, Maricopa and Pima, with the majority of clinics centered in Phoenix and Tucson. In Northern Arizona, only one clinic in Flagstaff offers the procedure. 

The state’s largest abortion provider, Planned Parenthood Arizona, runs four women’s health clinics that provide abortions, including the one in Flagstaff. A spokesperson for the organization noted that it employs just eight doctors but 15 nurses, signaling the extent to which abortion services could expand if the state’s restrictions are eliminated. 

Abortion rights attorneys face opposition from Republican lawmakers in the effort to ease access to the procedure. Senate President Warren Petersen and House Speaker Steve Montenegro have joined the case to convince the court that the laws should be kept in place. 

The Republican duo have unsuccessfully sought to defend anti-abortion laws amid a wave of litigation from reproductive rights groups filed after voters agreed to make the procedure a fundamental right. In a response to the lawsuit, attorneys for the pair argued that the restrictions were passed with the goal of keeping women safe and posited that, because the laws might, in some cases, serve as protections for patients, they are compatible with Arizona’s abortion rights amendment and should be preserved.

“Plaintiffs cannot establish that no set of circumstances exists under which the challenged laws would be valid, and thus Plaintiffs cannot prevail,” wrote attorney Katlyn J. Divis. 

Petersen and Montenegro have made similar arguments before, saying that restrictive laws may sometimes be necessary or helpful to maintain a patient’s health to undermine the arguments from reproductive rights groups. But so far, that view hasn’t been convincing in court. 

Arizona Attorney General Kris Mayes, a Democrat who ran on a campaign to protect abortion access, largely sided with the ACLU, filing a statement that said her office agreed that the majority of the laws violate the state’s constitution. 

But Mayes will be defending the state laws that require a doctor to obtain written parental permission before a minor can receive an abortion and require seeking a doctor’s advice if a pregnancy is suspected, even after an abortion was performed. The law mandating parental permission before a minor can get an abortion includes exceptions allowing a judicial order to serve as permission, or letting a doctor perform an abortion without permission if the minor says the pregnancy was the result of incest or their medical record shows one is necessary to prevent death or major bodily harm. 

Richie Taylor, a spokesman for the AG’s office, said that Mayes believes those laws do not violate the constitutional right to abortion.  

While the state is currently siding with reproductive rights attorneys, that could change if Mayes loses her re-election bid in November. Petersen, a Republican who represents Gilbert and has long pushed to further narrow access to abortion care, is aiming to unseat her.