For about the next two weeks, a confusing twist of old and new lawsuits have landed Arizonans a few choices if they are seeking abortion care. After that narrow window, if Arizona’s attorney general has his way in court, they may have to travel out of state or out of the U.S. to protect their health and access to abortion care.
Meanwhile, President and CEO of Planned Parenthood Arizona, Brittany Fonteno, is underscoring this message: Abortion in Arizona is — at least temporarily — legal.
Pima County Superior Court Judge Kellie Johnson is expected to issue a ruling on Sept. 20 that could either further restrict — or potentially broaden — abortion access.
Days later, on Sept. 24, a law that outgoing Republican Gov. Doug Ducey signed is set to take effect. The GOP-controlled Arizona Legislature passed the measure earlier this year. It would ban most abortions after 15 weeks of pregnancy.
The confusion over the health rights of pregnant people started after the U.S. Supreme Court overturned Roe v. Wade in June. Arizona’s Republican Attorney General Mark Brnovich took to Twitter to say he would enforce an 1864 state law, a near-total ban on abortions passed before women had the right to vote. Breaking that law criminalizes doctors, and anyone who helps a woman get an abortion, with a sentence of 2-5 years in prison.
After Roe was overturned 6-3, Arizona elected officials, the majority of whom are Republican and male, had the power to decide laws banning abortions. Brnovich chose the most restrictive of the two competing laws. Planned Parenthood argued that other laws and court cases conflict with the 19th-century ban, and “plainly allowed physicians to provide abortions.”
Planned Parenthood claimed that a 1970s injunction prevents Brnovich from enforcing his choice for restricting abortion. Johnson heard the case on Aug. 19.
The injunction tied to a lawsuit filed in 1971, two years before the Roe v. Wade decision, prohibits the 1864 law and exempts Pima County from the state’s near-total abortion ban, Planned Parenthood lawyers argued.
Planned Parenthood wants the numerous abortion laws on the books “harmonized” to clarify Arizonans’ legal rights. If so, “you will see that abortion is a legal medical procedure that can be performed by a licensed physician up until 15 weeks of pregnancy,” Fonteno said.
That stance doesn’t align with Brnovich’s position, who thinks that the 1864 abortion law should be the law of the land. That law was passed before Arizona became a state in 1912, when the Civil War was still raging, and nearly 50 years before women could vote.
Remarking on the court filing by the Arizona Attorney General’s Office to lift the injunction that put banning abortions on hold, Brnovich said placing decisions about abortion restrictions in the hands of elected officials was “the best and most accurate state of the law.”
An Arizona Public Opinion Pulse survey by OH Predictive Insights, conducted in May with 938 respondents, found that 87% of registered Arizona voters believe that abortion should be legal in some way. That percentage is identical to a similar survey in September 2021.
The few options remaining
Pima County sits in a unique legal position, which is why the Planned Parenthood clinic in Tucson recently began offering medication and surgical abortion care and taking appointments again. Only a handful of other clinics in the state, including one in Phoenix, are currently operating.
After this summer’s Supreme Court decision in Dobbs v. Jackson, which gutted abortion rights and undid the constitutional protection afforded by Roe, Brnovich asked the Pima County Superior Court to lift the injunction. That’s the ruling expected by Johnson on Sept. 20.
Given the head-spinning litigation and legal analyses, Fonteno reiterates her message: “Abortion is legal in Arizona.” But as anti-abortion lawmakers and officials espouse a different reading, many Arizonans are left confused about their legal rights.
“It’s important for people to understand,” Fonteno said. “The future of abortion rights are incredibly uncertain.”
“We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state,” Brnovich said in a press release about the motion filed to lift the injunction.
“Before Roe, Arizona had repeatedly enforced the criminal ban (codified then as § 13-211) on performing abortions other than to save the life of the mother by bringing prosecutions against doctors who performed such abortions,” Brnovich argued in the July motion.
Fonteno said the election will play a pivotal part in the future of abortion access in Arizona. “It is not an exaggeration to say that reproductive freedom is on the ballot in November,” she said.
Whether abortion is legal or not is beside the point for many people who can’t access a provider in the state willing to provide abortion care.
The website Abortion Finder can help people find a center nearest to them. In addition to the Planned Parenthood in Pima County and Choices Women’s Center in Tucson, at least one facility in Phoenix, Camelback Family Planning, confirmed that they are currently offering abortion care.
Planned Parenthood also has offices in Las Vegas, and has developed a patient navigator system to help people find and access the care they need. Californian lawmakers recently passed a bill that would make the state an abortion sanctuary.
Offering choice — and clarity
Planned Parenthood’s patient navigator program helps people overcome barriers to accessing abortion care, including offering funds and helping make travel plans to get to the few spots in the state where care is available.
“While we’re happy to be able to provide that service,” Fonteno said, “we know that having to leave your community to access basic health care is always a burden.”
Besides helping people access abortion care and pushing people to the polls, as well as trying to clarify the legality of abortion in the state, Planned Parenthood is also looking inward. Given the legal uncertainties, they want to make sure that their staff and providers feel safe and secure.
They’ve had conversations, held forums, and provided access to attorneys to answer questions. They want to make sure that their staff understand and feel good about the choice that they’re making, and also that they can change their mind at any time.
“Just like Planned Parenthood but supports people’s ability to make their individual choices about their reproductive health care,” Fonteno said, “we’re supporting our staff and their choice about whether or not they provide abortion care in this moment.”
When the Dobbs decision was initially announced, Ducey wrote that “I am proud that Arizona has been ranked the most pro-life state in the country.” He has deferred to the courts about clarifying the confusion between the multiple abortion laws.
In May, Republican Arizona gubernatorial candidate Kari Lake called abortion “the ultimate sin” and told KTAR it should be regulated at the state level. Her Democratic opponent for governor, Katie Hobbs, has made access to reproductive health care a key part of her campaign platform, saying: ”Let me be clear — the decision to have a child should rest solely between a woman and her doctor, not the government or politicians.”
When Planned Parenthood announced they’d resume offering abortion services in Tucson, Mayor Regina Romero wrote on Twitter: “I have been clear that people want and deserve access to bodily autonomy, including access to #abortion services.” She added that she supports Planned Parenthood Arizona.
Referencing the upcoming “pivotal election,” Fonteno said, “It’s so incredibly important that people are continuing to make their voices heard.”