By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Gov. Katie Hobbs signed legislation Thursday to repeal a territorial-era abortion law.
But that expected action does not end debate on the issue.

In fact, it’s just beginning. And that’s not just because it can’t take effect for months because of the legislative calendar.

Now the stage is for a multi-million dollar debate over whether most Arizonans are OK with allowing women to terminate a pregnancy only until the 15th week of pregnancy — what would remain once the old statute is finally gone — or whether they want a much more permissive statute that abortion advocates hope to convince voters to enact in November.

It all could come down to what Arizonans believe is reasonable.

Various polls have suggested the initiative was a shoo-in if the only other choice for voters was to maintain the 1864 law which bans abortion except to save the life of the mother.

That’s precisely what happened last year in Ohio which, until last year, had a law that banned the procedure at the point of a fetal heartbeat. That could be as early as six weeks after conception.

By a 13-point margin, voters last November approved putting a right to abortion in the state constitution. That came despite the fact that Ohio is generally considered a more conservative state than Arizona and its governor, Mike DeWine, campaigned against it.

That also could have been the same setup in Arizona.

But now, absent some unforeseen circumstances, it appears by November the territorial-era ban will be history and the law in Arizona will allow abortion up until 15 weeks.

That’s a far different situation. In fact, in 2022, of the 11,407 pregnancies terminated in Arizona, just 380 were beyond 15 weeks.

Put another way, maintaining a 15-week law allows 95% of all abortions to remain legal.

There are indications some Arizonans who oppose an outright abortion ban — what the 1864 law effectively has been — would be willing to support some restrictions.

In a 2022 survey after the U.S. Supreme Court overturned Roe v. Wade, OH Predictive Insights found only 9% of Arizonans questioned wanted abortion to be illegal in all circumstances. By contrast, 50% said the procedure should be legal only under certain circumstances, a figure that dropped to 41% when the question was allowing abortions at all times.

But the question remains whether that translates to how people may vote in November.

Sen. Anna Hernandez said Thursday the initiative to enshrine a right to abortion in the Arizona Constitution remains necessary, even with 15 weeks becoming the law of the land.

“Picking a 15 week or six weeks, that’s all arbitrary,’’ said the Phoenix Democrat, adding that includes the ability to terminate a pregnancy not just up to fetal viability, generally considered between 22 and 24 weeks as the initiative would guarantee, but also the right to an abortion after that in cases of maternal physical or mental health, which also is in the ballot measure.

“You cannot dictate and you cannot pinpoint when a complication of pregnancy’s going to happen,” said Hernandez, who spearheaded the repeal effort in the Senate. The initiative, putting a right to abortion into the state constitution, would preclude future lawmakers from second guessing all that.

“That’s why it is so important to get politicians out, get government out, and let that choice be between that person and the medical provider,” the senator said, adding the fact there had to be a debate on the Senate floor Wednesday to repeal the measure proves that point.

“The Republican leadership in Arizona has shown that they are unwavering in their desire to strip us of our right, our voices and our vote,” Hernandez said.

Rep. Stephanie Stahl Hamilton, sponsor of the bill that Hobbs signed Thursday, also said the fact the territorial-era law is virtually certain to have been repealed by Election Day, leaving just the 15-week limit, does not undermine voter desire to get government all the way out of the picture when it comes to abortion rights.

The Tucson Democrat pointed out the initiative drive actually was launched last year when state law allowed abortions until 15 weeks, long before the April 9 ruling by the Arizona Supreme Court concluding that the 1864 statute actually trumps the newer law.

What that means, the Tucson Democrat said, is those who already had signed the initiative petition — more than 500,000 so far according to sponsors — clearly do not think a 15-week limit is appropriate.

Still, she said, the legislation Hobbs signed Thursday was necessary.

“Our action to repeal this 1864 ban was to keep us from going backwards, to keep us from stepping into the past,” Stahl Hamilton said.

There’s something else that could be part of what voters consider: the restrictions that would remain under a 15-week law.

Like the territorial-era law, the 15-week measure that will be in effect once the repeal signed Thursday by the governor takes effect, allows abortions beyond that point to save the life of the mother.

But the only other exception is for a “medical emergency.”

That, however, is narrowly crafted, meaning the need for an immediate abortion because a delay would “create serious risk of substantial and irreversible impairment of a major bodily function.” That is further defined as the immune system, normal cell growth and the “digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.”

There is no exception in cases of rape or incest.

That does not bother Cathi Herrod. The president of the anti-abortion Center for Arizona Policy who is involved in the campaign to defeat the initiative, said 15 weeks provides enough time for any victim of either crime to terminate a pregnancy.

By contrast, the initiative allows all abortions up to fetal viability, generally considered somewhere in the 22- to 24-week range, regardless of why a woman is seeking to terminate a pregnancy. And beyond that point, the procedure would be permitted not only to protect the life of the pregnant individual — the measure does not use the word “woman’’ or “mother’’ — but also to protect that person’s physical or mental health, something that would be decided by a doctor and the woman.

“Reproductive health care needs to be made available to all patients at all times, without the fear of criminalization,” said Stahl Hamilton. “And that is why we need to get this enshrined in our constitution.”

Even before Hobbs’ signature, the issue was generating big bucks.

Arizonans for Abortion Access, the group backing the initiative, already has collected more than $12.3 million in a campaign that supporters have said could cost $50 million.

The biggest donor to date is The Fairness Project. The Washington, D.C.-based organization, which has a history of supporting ballot measures in state where lawmakers refuse to approve voter-supported measures, already has kicked in more than $4.1 million.

Herrod declined to say how much foes, operating under the banner of It Goes Too Far, intend to raise, saying only it will cost “a lot” to defeat the measure and keep the 15-week limit. But so far, the group campaigning under the banner of It Goes Too Far has raised less than $525,000, including $100,000 from John Connelly, an attorney in Tacoma, Washington, who she said also has a home in Arizona, and an identical amount from David Lambert, a retiree from Tempe.

Foes already are trying to find what they believe are potential weak spots in the initiative to peel off voters.
Herrod cites a provision that bars any law that penalizes any individual for aiding or assisting a pregnant individual in exercising the right to abortion.

“The sex trafficker who takes his 14-year-old victim for an abortion to cover his crime would not face any consequences,” Herrod said. “When voters see that, they’re going to be outraged by that idea.”

Dawn Penich, spokeswoman for the initiative campaign, sniffed at that contention.

“I’m not going to even entertain the scandalous speculation of our opposition,” she said.

The whole purpose of that section, Penich said, was to ensure that “if a sister drove her beloved sister to the doctor that she wouldn’t be criminalized.” And there are separate laws dealing with sex trafficking and having sex with a minor.

A closer call could be the question of whether the initiative would override existing laws that generally require a minor to get parental consent to terminate a pregnancy.

There already are exceptions in cases where a teen could convince a judge that she is mature enough to make that decision.

But the initiative, in declaring that “every individual has a fundamental right to abortion,” does not spell out that exists only for adults.

Penich said nothing in the initiative changes parental consent requirements.

“What it says is that patients, their medical providers and their families should be the ones making this decision exclusively,” she said.

“So that is a conversation for the patient, their family and their doctor,” Penich continued. “If a doctor feels that more people need to be looped into a situation, then that’s what the patient or the doctor will do.”

And she brushed aside a question of what happens if a minor patient and doctor conclude that a parent does not need to be involved, saying they are all part of “hypothetical speculations” by foes of the measure.