By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Women in Arizona won’t be denied access to abortion, at least up to the first 15 weeks of pregnancy, because an 1864 abortion law outlawing it won’t get a chance to be reinstated.

It’s all because state lawmakers finally ended their 2024 session and went home Saturday.

Legislators voted May 1 to repeal the territorial-era law that outlaws abortion except to save the life of the mother. That followed an April 9 order by the Arizona Supreme Court declaring the decision by the U.S. Supreme Court overturning Roe v. Wade and its constitutional right of abortion made the old — and never repealed — law again enforceable.

Only thing is, all state laws take effect 91 days after the end of the session.

Saturday’s adjournment makes that Sept. 14.

Attorney General Kris Mayes did get the Arizona justices to delay their “mandate” — the formal order reinstating the old law — until Aug. 12 to give her time to decide whether to seek U.S. Supreme Court review.

And there already is a separate agreement made by her predecessor, Mark Brnovich, that the state will not begin to enforce the old law for at least 45 days beyond the effective date of the Supreme Court ruling. That takes Arizona through Sept. 26 — nearly two weeks after the law that is at the center of the case will be repealed.

None of that returns the law in Arizona to where it was before Roe was overturned. Going that far will require voter approval in November.

Under Roe, women in Arizona were considered to have an absolute right to terminate a pregnancy prior to fetal viability. That generally is considered between 22 and 24 weeks.

There are some exceptions. On the books is a 2011 law that makes the procedure illegal if the reason it is sought is the race or gender of the fetus. A trial judge had blocked it but it was reinstated by a federal appeals court which concluded no one who had sued actually had standing to bring the case.

Still being litigated is a 2021 law that makes it a felony, with a one-year prison term, to terminate a pregnancy if the woman is seeking the procedure solely because of a fetal genetic defect.

Once the nation’s high court overturned Roe, Brnovich got Pima County Superior Court Judge Kellie Johnson to declare the territorial-era law enforceable even though state lawmakers in 2022 had enacted a 15-week ban to kick in should the U.S. Supreme Court uphold a similar Mississippi law.

That was stayed by the state Court of Appeals, which said the 15-week law was enforceable. Ultimately the Arizona Supreme Court concluded Johnson’s ruling was correct.

All that led to the May 1 vote by lawmakers to repeal the old law, leaving only the 15-week restriction.

That has been the law since the Supreme Court stayed its mandate — and will be the permanent law after Sept. 26 when the old law formally disappears.

There had been a real concern there would be a gap between the final Supreme Court mandate and the effective date of repeal of the territorial-era law when it again would be enforceable. In fact, California Gov. Gavin Newsom signed a measure last month to allow Arizona abortion providers to temporarily perform abortion services to patients from Arizona who travel to California for that procedure.

“We are grateful that the Legislature decided to conclude the legislative session, thus allowing abortion care to continue in Arizona without any gaps in services, said Erika Mach, chief external affairs officer for Planned Parenthood Advocates of Arizona, the political arm of the organization.

She acknowledged in her statement that still leaves Arizona with a 15-week restriction. And that law has no exceptions for rape or incest, though there is one for a “medical emergency,” a term not defined in the law.

But Mach said it is still a positive development.

“Individuals can rest assured knowing they can receive the care they need in a safe environment,” she said.

This isn’t the end of the debate on abortion and when it can be performed.

Voters may get a chance to put the law in Arizona back to the way it was before Roe was overturned.

Backers of what’s been dubbed the Arizona Abortion Access Act say they already have far more than the 383,923 valid signatures on petitions to put the issue on the ballot. The deadline to turn those in to get them validated is July 3.

That measure would put a provision in the Arizona Constitution declaring that every individual “has a fundamental right to abortion.”

It also says the state cannot “enact, adopt or enforce any law, regulation, policy of practice that ... denies, restricts or interferes with that right before fetal viability.” The only exception would be if there is a “compelling state interest.”

That, in turn, would be defined as protecting the health of those seeking abortion consistent with accepted clinical standards of practice. And it also cold not “infringe on that individual’s autonomous decision making.”

There is language permitting the procedure after fetal viability in cases where a health care professional makes a “good faith” determination it is “necessary to protect the life or physical or mental health of the pregnant individual.”