Pro-abortion groups in Arizona are aiming to write abortion into the Grand Canyon’s state constitution, loosely following playbooks already employed in Michigan, Vermont, and California and underway for this fall in Ohio.
“Arizona for Abortion Access,” a self-described “coalition of reproductive health, rights, and justice organizations” that is endorsed by such “trusted institutions” as Planned Parenthood, the ACLU, and NARAL Arizona, filed an application to register its initiative campaign with the Arizona Secretary of State August 8, according to the AZ Mirror. The group plans to launch signature collection in September: it has until July 2024 to gather just under 384,000 signatures to put the issue to a vote in November 2024, in the middle of presidential and Congressional elections. Democrat Governor Katie Hobbs, who has stymied enforcement of the state’s pro-life laws by reserving that function to the state attorney general (who, like Hobbs, is pro-abortion) applauded the move.
The draft of the amendment contained in the August 8 Application aims to establish a “fundamental right to abortion.” That goal is then followed by eight lines of legalese pretending to differentiate between pre- and post-viability, but with a dense set of exception criteria that essentially eviscerates the purported limits. Specifical pro-life concerns:
The “findings” in section 2:
Assert “Arizonan’s believe strongly in individual autonomy, which includes the right of each individual to make personal decisions about their [sic] own health care …” a claim which backhandedly declares that, in that decision, the unborn child is not a person with any independent rights or interests (nor the state on his behalf);
Blames the reversal of Roe v. Wade for “depriv[ing] Arizonans of their longstanding individual right to abortion,” even while admitting that, but for Roe, Arizona law would ban abortion (as it did since territorial days in 1864);
Tells Arizona courts that the initiative should be “liberally construed in furtherance of the fundamental right it establishes,” i.e., constitutionally instructs state courts to adopt the most permissive approach towards abortion when any such policy is legally challenged.
Section 3 contains the actual language to be inserted into the state constitution. It opens by declaring “Every individual has a fundamental right to abortion … .” By framing abortion as a “fundamental” right, upholding any policy challenged as impairing that right would be subject to the strictest scrutiny standards, both on the basis of that explicit language and the previous statutory instruction that this new “right” be “liberally construed.” By using the word “individual,” the amendment ensconces the biological fiction that non-women can become pregnant, thus writing gender ideology into the state’s constitution. By employing “individual” without further qualification any minor, even if otherwise unemancipated, could obtain an abortion without parental consent or even knowledge. (Arizona currently requires one parent’s written consent or judicial bypass for an unemancipated minor to obtain an abortion).
It treats pre-viability abortions as practically absolutely protected because, while theoretically allowing for a law which, by “the least restrictive means” advances a “compelling state interest.” “Compelling state interest” is defined as whatever promotes “improving or maintaining the health of an individual seeking abortion care” according to “accepted clinical standards and evidence-based medicine” not “infring[ing] on that individual’s autonomous decision-making.” Translation: (1) the state has no interest in prenatal life, real or “potential” (Roe’s term); (2) any limits on abortion pertaining to “informed consent,” making an ultrasound available, establishing waiting periods, or required admitting privileges at a local hospital would with near certainty fail, becoming what pro-abortionists pejoratively call “TRAP” (targeted restriction on abortion providers) laws. Arizona currently has a 24-hour waiting period, requires an ultrasound, and bars anyone but a physician from performing abortions.
While theoretically allowing for restrictions on post-viability abortions, such restrictions are mere window dressing, because they are declared inapplicable when necessary to “protect the life or physical or mental health of the pregnant individual” (emphasis added), reserving that determination exclusively to “the good faith judgment of a treating health care professional.” (By using that term and not “physician,” the amendment clearly leaves open the presumption that Arizona could/should allow non-physicians to perform abortions).
“Fetal viability” is also to be determined exclusively by that “treating health care professional,” who must consider the “fetus’s sustained survival outside of the uterus without the application of extraordinary medical measures.” Three issues: (i) fetuses outside the womb are newborn persons, entitled to all rights under the 14th Amendment to the Constitution; (ii) the newborn’s “sustained” survival after abortion trauma is likely to require active care, against which this amendment discriminates; (iii) “extraordinary medical measures” are undefined, leaving open the question whether standard neonatal care for distressed newborns is “extraordinary” and, therefore, non-obligatory.
Section 6 presents an interesting deputizing of abortionists. In addition to practically mandating the State to defend any challenge to the amendment, it entitles the “sponsor” of the initiative or its “designee” (NARAL AZ, Planned Parenthood, and the ACLU are endorsers) to “intervene” in that case. In essence, abortionists hire the State Attorney General and entitle themselves to enter any case alongside him. (Are they worried the state might do what they’re doing and not defend its laws?)
Given the privileging of this right and the instructions not to impair it the amendment would, with practical certainty, nullify current Arizona bans on Medicaid-funded abortions and Obamacare insurance plans obtained through state exchanges.
In comparison to the Ohio referendum to be voted on in November 2023, the Arizona amendment explicitly says nothing about protecting “fertility treatment” (which probably includes surrogacy). This author would argue that the “autonomy of medical decision-making” thrust of the Arizona amendment and the individual sexual autonomy of the American Far West (e.g., Nevada’s looser prostitution laws) could lead to a court, “liberally construing” this amendment, to find its “penumbras” achieve that same outcome.
These are the potential constitutional implications. As I have previously noted, abortion debates are usually conducted not on refined legal arguments but broad-based narratives. The narratives here are likely to be:
In libertarian, Goldwater-country Arizona, “autonomy” is unassailable;
Not approving this amendment to legalize abortion through birth would restore a 19th century territorial law limiting abortion to cases where a woman’s life is endangered;
This is “just” restoring or “codifying” Roe v. Wade;
This has “nothing” to do with gender ideology.
Targeting this referendum for November 2024 is a deliberate effort to synergize with general Democratic strategies to play abortion as a get-out-the-vote issue; to try to swing Arizona into the Democratic presidential column and effect a longer-term political transition in the state; and to affect the 2024 Senate race, no matter how it involves maverick pro-abortion incumbent Krysten Sinema, weaponizing the race against any prolife challenger. (The question will be whether Sinema, who left the Democratic Party December 9, 2022 to become “independent” will return to her former party, whether Democrats will take her back or run against her, and/or whether she runs only as an “independent” in a three-way race. NARAL gives her a 100% pro-abortion rating; National Right to Life, 0%. A three-way race splitting pro-abortions risks helping a prolife candidate win, so does the amendment pump up pro-abortion turnout?).
In sum, this proposed amendment would create a state constitutional right to abortion through birth regardless of whether or not the woman obtaining an abortion is a minor. It would compel state funding of abortion. It privileges abortionists by giving them monopolies to make legal determinations (What is viability? Is a woman’s “mental health” at risk? Can we argue alongside the Attorney General in defense of this provision?) It would enact an absolutely open abortion regime the likes of which no body of Arizona lawmakers has ever voted for, even since pre-statehood days.