Following abortion rights election victory, lawsuit aims to overturn AZ’s 15-week abortion ban

After voters last month approved sweeping constitutional protections for abortion in Arizona, two local doctors and Planned Parenthood are suing to void the state’s 15-week gestational ban. 

Last month, more than 60% of Arizonans voted to enshrine abortion rights in the state constitution, including access to the procedure generally up to the date of fetal viability, which is typically around 24 weeks. But finalizing that effort requires the courts to overturn the current abortion ban, which was added to state law in 2022. 

On Tuesday, abortion advocacy groups, including The Center for Reproductive Rights and the American Civil Liberties Union, kickstarted the process, filing a lawsuit on behalf of two OB-GYNs and the Arizona branch of Planned Parenthood. The lawsuit, filed in Maricopa Superior Court, demands the courts rule the 15-week ban unconstitutional and unenforceable. 

“Absent relief from the Ban, Arizonans will continue to suffer the irreparable deprivation of their fundamental rights and serious, irreparable harm to their physical, psychological and dignitary well-being,” reads the brief. 

Proposition 139, certified along with the rest of the 2024 general election results and officially made part of the Arizona Constitution last week by Gov. Katie Hobbs, prohibits the passage or enforcement of any law that infringes on a woman’s ability to receive an abortion. 

In the lawsuit, attorneys pointed out that Prop. 139 expressly guarantees access to abortions up to fetal viability, and the 15-week ban should be struck down because it outlaws the procedure before then. The protections voters agreed to place in the Arizona Constitution trump the 2022 law, the plaintiffs argue. 

There is only one exception included in the amendment that could allow for state laws that restrict abortions in some way, but that exception is narrow, and mandates that laws which seek to regulate abortions be based in evidence-based medical care and either improve or maintain a patient’s health. And the patient’s ability to make their own decisions regarding their reproductive health care must be upheld above all else, the doctors argued. 

“The Ban fails both parts of this two-part test,” reads the lawsuit.

The 2022 law also includes civil and criminal penalties for doctors who violate its deadline if a woman isn’t in danger of death or the impairment of a “major bodily function.” Over the past two years, Arizona abortion providers accused of breaking the law faced a class 6 felony, which carries with it between 4 months and 2 years in prison, and the loss of their medical license or financial penalties handed down by the Arizona Medical Board. The abortion rights amendment, however, strictly forbids punishing doctors or anyone else helping a woman obtain the procedure. 

Failing to eliminate the15-week law would effectively keep a threat on the books for doctors across the state, and would only negatively impact the care Arizona women receive — care that is now legally a right. 

“The Ban forces Plaintiffs to choose between turning away patients who need abortion care after 15 weeks…and risking prosecution and severe civil and licensing penalties,” reads the brief. “In addition to causing irreparable physical, psychological, and dignitary harms to their patients, the Ban directly undermines Plaintiffs’ ability to provide pre-viability abortions in accordance with their ethical duties and their commitment to providing essential medical care to their patients.”

Doctors will be able to provide abortion care without threats.

Last week, Arizona Attorney General Kris Mayes, the state’s top prosecutor and the person responsible for representing its laws in court, said that her office would side with reproductive rights groups in the effort to nullify the 15-week gestational ban. Mayes said her office considers it to be unconstitutional in the wake of Prop. 139.

And on Tuesday, she joined a legal agreement reiterating that view and promising that it won’t be enforced while litigation continues. That agreement, which is expected to be filed with the court later today as soon as the case is accepted,  will offer doctors a legal shield under which to provide abortion care without fear of prosecution.   

The doctors involved with the lawsuit celebrated that shield as a win for their patients and women across the state. 

“For two years, physicians’ hands have been tied when a patient needs to end a pregnancy after 15 weeks, including when they face serious pregnancy complications,” Scottsdale OB-GYN Dr. Eric Reuss said in a written statement. “But today we can once again provide care to people who want to end their pregnancy. We hope the courts will quickly recognize the harms of Arizona’s ban and strike it down once and for all.

“The constitutional amendment voters approved last month made it clear that Arizonans value the right to access safe, compassionate care, including abortion,” echoed Dr. Paul Isaacson, the co-owner of Family Planning Associates Medical Group, one of a handful of abortion clinics in the Valley. “Yet, the 15-week ban forces us to withhold essential care from patients, even when their health or future is at risk. My patients deserve better. I am hopeful that the courts will honor the will of the people and restore their right to make deeply personal decisions about their own bodies.” 

Cathi Herrod, the president of the anti-abortion Center for Arizona Policy, a Christian lobbying organization that spearheaded the 15-week ban and most of Arizona’s other abortion restrictions, denounced the lawsuit in a written statement.

“Our commitment remains what it had always been: protect both the woman and her unborn child,” she said, adding that her organization had not yet decided whether to intervene in the litigation.

***UPDATED: This story has been updated with additional comments and reporting.