Trial over Arizona abortion restrictions ends with judge voicing doubt about GOP defense

The judge overseeing a challenge to Arizona laws restricting access to abortion appears poised to rule that they violate the constitutional right to abortion that voters created in 2024 after a trial over whether they should be struck down concluded earlier this week.

As the trial wrapped up on Jan. 12, attorneys for reproductive rights groups urged Maricopa County Superior Court Judge Gregory Como to find that the laws are no longer consistent with the rights outlined in the Arizona Constitution and should be thrown out.

Meanwhile, the legal team for Republican legislative leaders, who took up defense of the laws when Arizona Attorney General Kris Mayes declined to, argued that the restrictions should be preserved because they don’t actually impede abortion access, just guide how to provide the procedure.

At issue are a series of abortion laws that Republican lawmakers and governors created over the past three decades. While the U.S. Supreme Court had rejected attempts by states to eliminate or sharply curtail access to abortion, they largely allowed legislatures to impose laws that added hurdles and minor inconveniences to people seeking the procedure.

But after voters in 2024 agreed to make abortion acccess a fundamental right in the Arizona Constitution, the legal status of dozens of laws regulating and restricting abortion became questionable. When Republican lawmakers, who control the Arizona legislature and have the power to overturn state laws, refused to do so, abortion rights groups went to court seeking judicial rulings to nullify them instead. 

Over the course of three evidentiary hearings in November, attorneys for two local abortion providers argued that the laws violate the state’s newly adopted right to abortion. Among the restrictions they challenged are statutes that ban the mailing and prescription of abortion pills via telehealth; forbid abortions because of a fetal genetic abnormality; and require an ultrasound, a 24-hour delay and the recitation of state-mandated information before a procedure can be performed. 

On the trial’s final day, Como appeared less receptive to the reasoning from the legislature’s top Republicans, voicing skepticism of claims that the state’s abortion rights amendment does nothing more than return Arizona to a time when Roe v. Wade was the law of the land and the restrictions were accepted as a regulatory framework. But Como’s final ruling won’t be known for several more weeks yet. 

“It’s going to take me a while to wade through all of these issues and proposed findings of fact,” he said shortly before ending the hearing. “I wouldn’t expect a decision right away, probably going to take 30 days or so to get through all of this, but I will issue my ruling as soon as I can.” 

Is it enough for the laws to meet the new legal standard in some cases?  

Opponents of the challenged laws argue that they directly contradict the voter-protected directives in Proposition 139, the state’s abortion rights amendment. It explicitly prohibits the state from adopting or enforcing any law that denies, restricts or interferes with a woman’s ability to obtain an abortion before fetal viability. 

The only exception is when a law satisfies a “compelling state interest” that is implemented in the least restrictive way possible. And any compelling state interest must be intended to maintain or improve the patient’s health, be in line with evidence-based medicine and accepted clinical standards, and not infringe on the patient’s “autonomous decision-making.” Any regulation that doesn’t meet all three of those criteria should be deemed unconstitutional, reproductive rights attorneys argued. 

Because the right to abortion is now a part of the Arizona Constitution, the burden of proving that the remaining laws restricting how and when a woman can obtain an abortion are still lawful is on the GOP leaders who intervened in the case. 

In November, the legal team for Senate President Warren Petersen and House Speaker Steve Montenegro primarily sought to build that proof by poking holes in the assertions from abortion rights attorneys that the challenged laws are always flying in the face of the new fundamental right. 

For instance, abortion providers often perform ultrasounds to determine a pregnancy’s gestational stage. That, the GOP attorneys argued, aligns the Arizona law that mandates the test’s use with the provision in Prop. 139 that requires a law to be rooted in evidence-based medicine. 

Anti-abortion attorneys also heavily relied on speculation that a woman could be the victim of coercion to defend the law banning the use of telehealth in abortion care. That ban, they argued, advances the state’s “compelling interest” in maintaining a woman’s health because requiring patients to meet abortion providers in person acts as a safeguard against abuse.

But attorneys for the local abortion providers offered a scathing rebuttal of that strategy in the trial’s final hearing. Hayleigh Crawford, a deputy solicitor general in Mayes’s office, told Como that just because the contested laws sometimes reflect best medical practices doesn’t automatically make them constitutional. Mayes, the state’s top prosecutor, sided with reproductive rights attorneys early in the case, filing a motion saying the state also believes that the remaining restrictions are unconstitutional. 

Crawford argued that a blanket requirement like the ultrasound mandate violates Prop. 139’s requirement that laws be narrowly tailored in the least intrusive way possible. Just because it is applicable to perform an ultrasound in some cases doesn’t mean it should be mandated in every case, she argued.

“It might overlap with medical standards to say, ‘Hey, you need an ultrasound,’” Crawford said. “But a law that says everyone must get an ultrasound, even in circumstances where it’s very clear it’s not medically required and doesn’t meet the constitutional standard, is not being constitutionally applied in that instance — it just means that, in (another) instance, it’s not raising any constitutional concerns.”

In November, multiple OB-GYNs testified that the ultrasound mandate unnecessarily prolongs the process and may distress a patient who already received an ultrasound at her family doctor’s office or is trying to terminate an unviable pregnancy. Abortion providers testified that establishing gestational age can often be accomplished simply by speaking with their patients, many of whom have consistent menstrual cycles or know when they became pregnant.  

Caroline Sacerdote, an attorney with the Center for Reproductive Rights, noted that, even if the laws in question sometimes satisfy parts of Prop. 139, no evidence was given that they represent the least restrictive solutions — a key provision in the abortion rights amendment. 

She dismissed the claim that a complete ban on telehealth for abortion care is meant to prevent coercion, saying that the vast majority of coercion cuts the other way: women are more often pressured to continue a pregnancy than they are to terminate it. And, Sacerdote added, coercion and abuse can happen even when women aren’t seeking an abortion, but there isn’t an outright ban on receiving any form of healthcare via telehealth. Instead, doctors rely on their training to be able to identify warning signs through tone of voice, body language, and targeted questions. 

A total prohibition that singles out abortion care is far from the least restrictive way to protect women, she said, pointing out that Republican lawmakers never addressed why common risk-identifying practices used elsewhere in telehealth wouldn’t also be sufficient to resolve concerns when providing abortion care remotely.  

Sacerdote also argued that the legal team for Petersen and Montenegro failed to justify the harshness and one-size-fits-all approach of the 24-hour waiting period and fetal genetic abnormality ban. 

The latter, also called the “reason ban scheme,” prohibits abortion providers from performing the procedure if they are aware the sole reason for obtaining an abortion is because of a fetal anomaly. Doctors who violate the law face between two and eight years in prison. Like with the ban on telehealth, attorneys for the Republicans claimed that the reason ban complies with Prop. 139 because it helps prevent women from being forced to terminate a pregnancy against their will. 

But Sacerdote was unconvinced by that justification, reiterating that there are other ways doctors ensure their patients are acting autonomously. 

“(The Repbulicans) certainly haven’t shown that the Reason Ban scheme’s wholesale ban on abortion uses the least restrictive means to prevent against the possibility of coercion,” she said. “Nor have they shown that the two-trip scheme’s universal requirements are the least restrictive means of promoting decisional certainty.”  

Should an abortion provider suffer legal consequences before the courts consider the issue? 

Attorney Justin Smith, representing Petersen and Montenegro, used the trial’s final day to try for a third time to convince Como to dismiss the case. No abortion provider, he argued, has been jailed, fined or lost their license because of any of the stringent restrictions that remain in state law, which means it’s too early to challenge them. Como did not indicate whether he would consider the latest request, but he appeared skeptical.

Smith noted that Democratic state leaders have vowed not to prosecute doctors for violating abortion restrictions, meaning it’s speculative to take on the case based on the possibility of a change in government in the future. Petersen, who has long opposed abortion and supported the fetal genetic abnormality ban while it was making its way through the legislature, is running to replace Mayes in this year’s election. If he succeeds, Crawford later warned Como, Petersen would be able to prosecute doctors if the laws remained on the books. 

Como seemed unimpressed by Smith’s assurances that the laws exist in name only. 

“So, then why would legislative leaders be so intent to defend these laws if they’re never going to be enforced?” he asked. 

Smith replied that, as lawmakers, Petersen and Montenegro have an interest in defending legislation. 

Como also pressed Smith on why the court shouldn’t weigh in to resolve the “fundamentally unfair” quandary doctors face when confronted with the choice between breaking the law and inviting legal or professional repercussions or, alternatively, complying with mandates they believe to be both unconstitutional and contrary to patient welfare. 

Smith said that isn’t sufficient to satisfy the legal threshold of ripeness. There is currently no concrete injury, he said, that merits judicial intervention, though he acknowledged that the debate could be had in the future if the laws are ever enforced. 

“(Mayes) is running for reelection and, for all we know, there may be several years where she has discretion in this instance, and so to speculate that there will be someone else at some point … who will make this a priority, someone who will take action, is speculation upon speculation,” Smith said. “And, at that point, the physicians will have all the defenses they have in this case — they aren’t losing anything. They can still assert those defenses at that time, when it’s proper and when it’s timely and that time just isn’t now.” 

How expansive (or how limited) should access to abortion in Arizona be?

Smith maintained that, because the laws mirror standard medical practices in some instances and serve to advance women’s welfare in others, the argument that they are unconstitutional falls apart. In the end, he contended, the laws fulfill a compelling state interest in some way, and that’s enough reason to preserve them. 

Como grilled Smith on the rest of the criteria in the abortion rights amendment, pressing him on how the laws respect the patient’s autonomous decision-making ability. Smith reasoned that, because the laws don’t stop women from fulfilling their fundamental right to obtain an abortion, they comply with the requirements in the new abortion rights amendment and can coexist alongside it. 

“None of these provisions prevent an abortion,” Smith said.

But that didn’t appear to satisfy Como, who questioned how a total ban on abortion care via telehealth doesn’t constitute a violation of a woman’s decision-making ability. 

“When you ban that option altogether, how does that not infringe on a patient’s decision-making?” he asked. “They might decide they don’t want to do telemedicine, but when you tell them, ‘You don’t have that choice,’ when you remove that choice from their purview — how is that not infringing on their decision-making?” 

Smith rebutted that Prop. 139 creates a right to accessing just the abortion itself, it doesn’t mandate how to ensure that access, such as through telemedicine appointments. As long as the pregnancy can be terminated, the framework around how that is achieved shouldn’t be scrutinized, according to Smith.

“The right to abortion is very clear,” he said. “Abortion doesn’t mean telemedicine, abortion doesn’t mean material or pamphlets, it’s that specific procedure. And that specific procedure is still allowed under each one of these provisions.” 

Reproductive rights attorneys have argued in court filings and during the trial that the abortion restrictions do, in fact, violate the right guaranteed by Prop. 139 because their intent is to dissuade women from obtaining an abortion and create structural hurdles in the process. 

Abortion providers testified that the 24-hour mandatory delay, also called the “two trip scheme” because it results in two separate in-person visits, represents an economic hardship for women who live in rural areas or can’t afford to take multiple days off of work or away from their families. 

Along with trying to retain the state’s existing restrictions, abortion foes have pushed to clarify the newly adopted amendment in a way that limits its gestational protections. It guarantees access to abortion up to fetal viability, which is generally regarded as being around 23 or 24 weeks. 

But the text doesn’t include an exact gestational cutoff, instead leaving it up to the treating health care provider to determine when, in their good faith judgement and based on that specific case, the fetus is likely to survive outside the uterus without “extraordinary medical measures.” An exception for abortions performed beyond fetal viability is also included, when one is deemed necessary to preserve the woman’s life, physical or mental health. 

The standard in Arizona’s abortion rights amendment is far more expansive than the one that existed in Roe, and that has prompted significant opposition from opponents. 

During an evidentiary hearing last year, Smith sought to force the court to weigh in on an exact timeline for fetal viability, despite the fact that the case revolves only around how the laws apply to pre-viability abortions. Como quickly shut down that attempt. 

In court filings, the legal team for Republican leaders pushed to align Arizona’s abortion amendment with the federal framework established by Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey before the U.S. Supreme Court overturned both cases and eliminated the constitutional right to abortion in 2022. In Roe, access to abortion was closely tied to fetal viability, which was estimated to be between 24 and 28 weeks. And in Casey, the court allowed concern over the life of an “unborn child” to be counted among the list of possible compelling interests states could use to justify regulations on the procedure. 

That reasoning is notably absent from Arizona’s new standard. 

But Smith still advocated for that understanding during closing arguments. The courts, he said, should interpret Prop. 139 as reviving the standards that existed before Dobbs v. Jackson Women’s Health Organization upended the legal landscape because the amendment’s own voter education campaign sold it as doing just that. 

“All the evidence, be it the findings, the publicity pamphlets, the public messaging — all were telling the voters, and the voters were reflecting back, that this is restoring Roe,” Smith said. “To now come into this case and say, ‘Well, actually, that’s not what was happening, this is different from Roe,’ is very different than what every piece of evidence points to.” 

That assertion prompted a sharp back-and-forth with Como, who remained unconvinced. The Arizona amendment, he said, bears no relevance or allusion to the standards in Roe or Casey. 

“Casey’s been overruled, so it’s no longer the law anywhere,” Como said. “Not in Arizona, not anywhere in the United States.” 

In one last ditch effort to salvage the restrictions on abortion, Smith urged Como to consider what parts of the laws could stand on their own. Many of the laws passed by the state legislature include a severability clause, which acknowledges that some provisions may be found to be unconstitutional in the future. The clause serves to preserve the rest of the law in the event that portions of it are struck down. 

But reproductive rights attorneys argued that the laws work in tandem and can’t be separated. Sacerdote noted that the state’s reporting requirements also gather information on potential genetic abnormalities in the fetus, which is banned in the reason scheme. Crawford added that the laws requiring an ultrasound and the recitation of state-mandated information to patients at least 24 hours before an abortion could be legally performed are linked together and must be eliminated all at once.

“You have to read the statutes in harmony and in context,” Crawford said. “Informed consent is inextricably intertwined with the 24-hour delay. You can’t ignore the other applicable provisions, these things operate together.” 

The final say in whether the laws are upheld, torn down or simply revised lies with Como. But that is unlikely to be the end of the debate, as an appeal from the losing party is likely to follow.