With the 2019 legislative session just months away, Brett Kavanaugh’s confirmation to the U.S. Supreme Court could be the spark for Arizona to push the envelope on anti-abortion legislation.
Kavanaugh replaced Justice Anthony Kennedy, who was appointed by President Ronald Reagan but went on to disappoint conservatives by providing the deciding vote in several high-profile cases. Most notably, Kennedy was the swing vote in Planned Parenthood v. Casey, which reaffirmed the abortion rights established by Roe v. Wade. More recently, Kennedy sided with the majority in a 5-3 vote that struck down large chunks of a Texas law that imposed stringent new restrictions on abortion clinics.
With Kavanaugh now in place, many Republicans are boasting of a new conservative majority on the court and believe it is poised to overturn Roe, the landmark 1973 decision.
Jodi Liggett, vice president of external affairs at Planned Parenthood Arizona, said she’s skeptical that there will be much of an uptick in pro-life legislation the the Arizona Legislature’s upcoming session, which begins in January. But she said abortion foes may be emboldened by Kavanaugh’s confirmation.
“I think now, in the current environment, you could have a situation where people are throwing stuff at the wall and seeing what they can get passed. So, we are geared up for that,” she said.
The pro-choice movement long ago focused its attention on chipping away at abortion rights, rather than simply trying to overturn Roe. Liggett said there are a number of areas where the Legislature could take action to either impose new restrictions or strengthen existing ones. She said Arizona could increase the 24-hour waiting period to get an abortion. Or it could impose new restrictions on abortion clinics under the guise of protecting women’s health and safety, she said, though the Supreme Court curtailed states’ ability to do so in its 2016 ruling on Texas’s law.
“There’s a hundred ways to treat abortion clinics like hospitals and make it very expensive to provide care,” Liggett said.
Much of the pro-life legislation that Arizona has passed in recent years was pushed by the Center for Arizona Policy, a Christian social conservative organization with a great deal of influence at the Capitol. CAP President Cathi Herrod had little say about what kinds of anti-abortion measures her organization might lobby for in the 2019 legislative session, telling the Arizona Mirror that it’s “too early to tell.”
“Lots of strategic discussions will be ongoing, but those won’t be talked about publicly,” Herrod said.
Several Republican lawmakers and legislative candidates said they haven’t yet considered what kinds of pro-life legislation they may run next session.
Maricopa County Attorney Bill Montgomery, who serves on the board of advisors for Arizona Right to Life, said he doesn’t think Kavanaugh’s appointment will change much at the Supreme Court. Outside of a few notable decisions, Kennedy largely sided with the court’s conservative bloc, he said.
Herrod said she doesn’t necessarily feel the same optimism that others in the pro-life movement do about Kavanaugh. She recalled how conservatives were disappointed by Kennedy and Chief Justice John Roberts, another Republican appointee, whose swing vote upheld the individual mandate in the Affordable Care Act in 2012
“Justice Kavanaugh’s record certainly shows him to be a judge who will interpret the law, not make the law. But until he actually rules on an abortion case directly, we won’t know. I have some concerns about all this talk about a conservative majority,” Herrod said. “While I strongly supported Judge Kavanaugh’s confirmation, until we see the actual case, we’re just not going to know.
“I’m hopeful, but time will tell.”
If pro-life lawmakers in Arizona want to pass legislation that could lead to a landmark reversal of abortion rights, they might already be too late. Elizabeth Nash, a policy analyst at the Guttmacher Institute, a nonprofit organization that advocates for reproductive rights, said there are already laws from other states in the judicial pipeline that could theoretically overturn or severely curtail Roe.
Perhaps the strictest of those laws is a ban on abortions after six-weeks that Iowa Gov. Kim Reynolds signed in May. Planned Parenthood and the American Civil Liberties Union of Iowa filed suit in state court challenging the law. A judge temporarily blocked the law from going into effect in June. Similarly, a federal judge in March temporarily enjoined a 15-week ban enacted by Mississippi this year.
Nash cited an Alabama law banning a specific type of abortion procedure used in the second trimester of pregnancy as a another test case that could reach the Supreme Court. The 11th U.S. Circuit Court of Appeals ruled in August that the Alabama law was unconstitutional, upholding a lower court decision.
“It could be the first case brought before a newly reshaped court, a court with Kavanaugh on it,” she said of the Alabama law.
Nash said most of the discussion she’s heard lately about new abortion restrictions center on outright bans, bans after a certain time period or prohibitions on types of procedures, such as the one in Alabama.
Arizona in 2012 passed a 20-week abortion ban, which was struck down by the 9th U.S. Circuit Court of Appeals. The Supreme Court declined to hear Arizona’s appeal of the ruling. Similar legislation has been struck down by federal appellate courts in other states. In 2015, the 8th U.S. Circuit Court of Appeals in 2015 rejected a 12-week ban enacted in Arkansas, along with a similar “heartbeat bill,” a moniker applied to legislation aimed at prohibiting abortions once a fetal heartbeat can be detected, that would have banned abortions after six weeks in North Dakota. The Supreme Court refused to hear appeals in both cases.
Ohio and Texas, however, have 20-week bans in place that have never been challenged in court.
Montgomery was skeptical that the Supreme Court would be willing to overturn Roe. Doing so, he said, would fly in the face of too much precedent. But he was more optimistic about the fate of laws like Arizona’s ban on abortions after 20 weeks of gestation, which he unsuccessfully defended before the 9th U.S. Circuit Court of Appeals.
“It’s also going to have to be presented in such a way that it’s an otherwise unremarkable petition to the Supreme Court to review the actions of a state legislature,” Montgomery said. “It isn’t really that monumental a shift.”
For now, Liggett emphasized that Roe is still the law of the land, and said people shouldn’t jump to the conclusion that will change simply because of the Supreme Court’s new composition.
“Just because we have a new justice on the Supreme Court who we believe will rule the ‘wrong way’ in abortion cases, that doesn’t mean the second he puts on his robe that Roe is overturned,” Liggett said.
Arizona has an abortion ban on the books that predates Roe and has never been repealed. Under that ban, doctors or others who provide abortions face two to five years in prison, while women who solicit abortions face one to five years behind bars. Were the Supreme Court to overturn Roe, that law could go back into effect.
But Montgomery said it’s no guarantee that the old law will go back into effect if the Supreme Court overturns Roe. He said it will depend on wording and details of any theoretical Supreme Court ruling.
However, Nash predicted that “some kind of abortion ban rises to the top of the agenda” in several states in 2019.
Since Republicans took over the executive in Arizona in 2009, when Jan Brewer replaced Janet Napolitano, Arizona has enacted a flurry of new restrictions on abortion. Some have been overturned by the courts, but many remain in place. In January, the anti-abortion group Americans United for Life named Arizona the most pro-life state in the country.
Among the abortion restrictions enacted in Arizona over the past decade are:
- A 2018 law requiring doctors to ask women to provide a reason for seeking an abortion.
- A “born alive” bill passed in 2017 that requires doctor to attempt to save the life of any baby who is born, including during an abortion.
- A 2016 law aimed at defunding Planned Parenthood and other abortion providers by excluding them from the Arizona Health Care Cost Containment System, which is the state’s Medicaid program, if they don’t fully segregate tax dollars to ensure they’re not used for abortions. The state agreed to temporarily halt enforcement of the law until AHCCCS crafts rules for the law’s implementation.
- A 2016 law barring state employees from using a payroll deduction program to make contributions to nonprofits that provide abortions.
- After Planned Parenthood Arizona sued over a 2015 law requiring doctors to tell patients that abortions induced by medication can be reversed, which many doctors disagreed with, the state agreed not to enforce the law. The Legislature repealed the law in 2016. That same year, lawmakers approved legislation protecting medical professionals who advocate for “non-standard” practices, such as the reversal of medication abortions.
- A 2012 law banning abortions after 20 weeks of gestation. The 9th U.S. Court of Appeals struck down the law as unconstitutional, and the Supreme Court refused to hear an appeal by the state.
- A 2011 law prohibiting women from getting abortions based on the gender or race of the unborn child.
- A 2009 law imposing a 24-hour waiting period before a woman can receive an abortion, and restricted anyone but a physician from performing a surgical abortion.
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