Pro-life legislative activism on the state level is heating up in advance of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health. One bill that’s moving forward in Arizona gives us a glimpse into what may be the next frontier of abortion litigation.
On Tuesday, the Arizona State Senate passed a bill that was very similar to the Mississippi law at stake in Dobbs. Since the Arizona Assembly is controlled by Republicans and the governor is a Republican, there is a good chance that this bill will be enacted into law before Dobbs is decided in June.
That’s important in itself. But there’s a provision in the Arizona bill that highlights an issue that is essential if we are to restrict abortion as much as possible.
Let’s take a step back in time for a moment. In Roe and Casey, the Supreme Court held that any attempt to ban abortion after viability had to include an exception for the mother’s life or health. Roe’s companion case, Doe v. Bolton, defined “health” in such expansive terms that virtually anything would be included. The Court said that it encompasses “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” Thanks to that definition, which abortion advocates generally call a “mental health exception,” simply not wanting the baby is sufficient cause for termination, even if both are in perfect physical health, making abortion effectively legal for any reason and at any time, up to the moment of birth.
The Arizona bill is written in a way that directly challenges that. That bill would ban abortion after 15 weeks, except if there is a “medical emergency.” Here’s the key definition in the bill:
“Medical emergency” means a condition that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
And to make sure that the courts understood that only dangers to physical health would qualify, they defined “major bodily function” in no uncertain terms: “functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.”
There’s no room in that definition for an abortionist to scheme up some kind of “mental health” pretext for an abortion based on Doe’s “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.”
The sufficiency of that kind of exception has not been definitively decided by the Supreme Court. In Casey, the Court approved a similar “medical emergency” exception, but that was only to a 24-hour waiting period, and spousal and parental notification. They haven’t considered whether such a narrow exception would be generally acceptable.
Many other states have enacted laws with similarly limited health definitions, but those laws have been enjoined by courts under Roe and Casey. So if the decision in Dobbs gives the States more flexibility to restrict or prohibit abortion, those laws may come back into effect.
And that’s the essential point raised by this new Arizona bill. For any abortion prohibition to be effective, the expansive “health” exception from Doe has to be directly challenged and eliminated. That would open up the next frontier of abortion litigation and work to further the physical health of both preborn babies and mothers at once.