WASHINGTON – In November, Arizona voters will decide on a state constitutional amendment, Proposition 139, that would guarantee access to abortion up to the point of fetal viability.

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That would mark a major shift. The state currently bans abortion after 15 weeks of pregnancy – roughly nine weeks before the point at which a fetus can survive outside the womb.

A group called Arizona Abortion Access collected 577,971 signatures, well over the 383,923 required to get the measure on the ballot.

“It essentially revives the right of abortion in Arizona as it was before the overturning of Roe versus Wade,” said Paul Bender, an Arizona State University constitutional law professor, referring to the landmark 1973 U.S. Supreme Court ruling that guaranteed the right to terminate a pregnancy. “If this passes, any law restricting abortion before fetal viability is unconstitutional.”

In 2022, the U.S. Supreme Court reversed Roe in Dobbs v. Jackson Women’s Health, sending abortion regulation back to the states.

Under Prop 139, abortion would be allowed after viability only in the case of a medical emergency. The amendment would take effect shortly after approval.

Viability generally occurs no sooner than 24 weeks gestation – fetal age calculated from the start of the mother’s last menstrual period – according to the American College of Obstetricians and Gynecologists.

“We ultimately want to put the decision back into the hands of pregnant people,” said Chris Love, spokesperson for Arizona for Abortion Access, which spent nearly two years working to get the proposition on the ballot. “We want to take the Legislature out of decisions around women (and) pregnant people’s bodies.”

Opponents warn that apart from expanding access to abortion, Prop 139 would also undermine dozens of state restrictions intended to protect patients, including parental approval for minors.

“This amendment threatens informed consent and other clinic regulations that ultimately keep women safe,” said Erica Steinmiller-Perdomo, legal counsel at Alliance Defending Freedom. “We believe children are deserving of protection from conception.”

Under current Arizona law, abortions are legal up to 15 weeks.
Exceptions can be made later in pregnancy to save the life of the mother or to prevent severe harm to a significant bodily function. There is no exception for cases of rape or incest.

That would remain the law if Prop 139 fails – though abortion rights supporters warn that without such constitutional protection the Legislature could tighten restrictions, even imposing a total ban.

“We figured enshrining abortion protection into the constitution was the most durable protection,” Love said.

Arizona would still have more than 40 abortion restrictions even if Prop 139 is approved. Among them:
Parental consent if the patient is under 18 years old.

An ultrasound to show the woman the fetus and let her hear the cardiac activity.
A mandatory counseling session, with information regarding adoption and other alternatives.

A 24-hour wait after the ultrasound and counseling session.

Physicians who provide abortions must have admitting privileges at a hospital within 30 miles of the clinic.

Arizona is the only state that cuts off abortion access at 15-weeks, according to the Guttmacher Institute, which studies reproductive health and rights.

Four states set a 6-week limit, which is often before a woman realizes she is pregnant: Florida, Georgia, Iowa and South Carolina.

Nebraska and North Carolina allow abortion up to 12 weeks. Utah’s limit is 18 weeks. Three states set a limit around 22 weeks.

Another 16 states, including New York and California, allow abortion through viability. Nine states and the District of Columbia set no restrictions on abortion tied to gestational age.

Love said that if Prop 139 is approved, her organization and others that support abortion access will get to work on trying to repeal some of the existing restrictions, though the Legislature remains under the control of Republicans.

That’s a major concern for Steinmiller-Perdomo and other opponents, including Arizona’s Catholic bishops, who announced their opposition last week.

“The amendment would justify abortion through all nine months of pregnancy,” she said.

“This initiative threatens to enshrine a constitutional right to virtually unrestricted abortion in Arizona,” Tucson Bishop Edward Weisenburger said in a video statement with fellow bishops.

Abortion care in Arizona is not covered under Medicaid, the state-federal program that provides health coverage to low-income Americans. Since 1977, the use of federal money for abortion care has been barred under the Hyde Amendment, which Congress has renewed repeatedly.

There are eight clinics in Arizona that provide abortions: four in Phoenix, one each in Glendale and Tempe and two in Tucson. That means about 75% of the state’s population lives in a county with a clinic.

Restrictions in Arizona have been fluid since Dobbs.

Three months before the ruling, the Legislature adopted the 15-week “trigger” ban that would take effect if the Supreme Court struck down Roe, as was widely expected. Former Gov. Doug Ducey, a Republican, signed it. The law took effect in December 2022.

After the Dobbs ruling, then-Attorney General Mark Brnovich, also a Republican, pushed for courts to allow enforcement of a near-total ban enacted in 1864.

The 1864 ban – adopted before Arizona became a state or gave women the right to vote – made performing an abortion punishable by up to five years in prison except to save the life of the mother.

Amid a public outcry, the Legislature quickly repealed the 1864 law. Gov. Katie Hobbs, a Democrat who replaced Ducey, signed the repeal in May.