Arizona still has 37 abortion restrictions. A lawsuit seeks to void them

In March, Arizona’s 15-week abortion ban was officially blocked. In accordance with the state’s constitution, which now contains abortion protections after the passing of Proposition 139 in November, a county judge ruled the old statute unconstitutional.

With Arizona’s 15-week ban permanently blocked, that may have seemed like the end of the story. Everybody’s happy, right?

Wrong.

Arizona’s 15-week ban was far from the only abortion restriction that remained on the books after the passing of Prop. 139. But for any of them to go away, a court must deem them unconstitutional or the legislature must repeal them. The Arizona Legislature failed to advance any bills to repeal these now-outdated measures to the governor’s desk. Instead, the Republican-led legislature decided to push more anti-abortion restrictions, which Gov. Katie Hobbs vetoed.

That leaves the courts.

On May 22, a cohort of abortion advocacy groups and doctors — specifically, two doctors, the Center for Reproductive Rights and the American Civil Liberties Union Foundation — sued the state in Maricopa County Superior Court. The suit seeks to overturn three current abortion restrictions: the 24-hour waiting period, the genetic abnormalities ban and the telemedicine ban.

Gail Deady, the lead attorney for the Center for Reproductive Rights, said the lawsuit is targeting “the most restrictive laws on the books in Arizona currently.” These laws have “no medical basis” and “their only purpose is to make it harder” for people to access abortion care, Deady added. That puts the laws in conflict with the state constitution’s “fundamental right” to care.

While the court case with take months to play out, it’s a small step toward knocking down dozens of anti-abortion laws still on the books.

Here’s a rundown of the 37 remaining abortion laws in Arizona.

24-hour waiting period: Under ARS 36-2153, patients must wait 24 hours from their first appointment before receiving an abortion. At that first appointment, they must be provided with the name of the physician who is providing their care, the nature of the treatment, potential risks, alternative treatment options and the probable gestation age of the “unborn child,” according to the statute. Then the 24-hour waiting period begins, taking up unnecessary time for the provider and patient.

State Sen. Eva Burch introduced a bill to repeal this waiting period. It was assigned to a committee but never voted on. This law is one targeted by the new lawsuit, which asks for a preliminary injunction. Deady argued it violates the constitution as there has “never been a medical basis for the two-trip-scheme” and called the law “medically unnecessary.”

If the provider performs an abortion without checking the gestational age, except in cases of medical emergency, they can be charged with a class 1 misdemeanor under ARS 36-2159. That could mean up to six months in jail and a fine of up to $2,500.

Must provide “alternatives to abortion”: During that initial appointment, abortion providers also must direct patients to a website that lists abortion alternatives, according to ARS 36-2158. If the patient is receiving an abortion because the fetus has a "non-fetal condition," they must be provided with "up-to-date, evidence-based information concerning the range of outcomes for individuals living with the diagnosed condition, including physical, developmental, educational and psychosocial outcomes."

ARS 36.2153.01 also specifically outlines that the Arizona Department of Health Services must provide a list on its website of public and private agencies that assist with pregnancy or childbirth. The list cannot include any agency that "refers, performs, induces, prescribes or provides any means for abortion."

No public state money for abortion: Under ARS 36-195.02, Arizona's State Health Plans can only cover abortion in cases when the life of the mother is at stake or when the mother has severely compromised health. Additionally, under ARS 26-196.05, Arizona cannot enter into a contract with a person that "performs non-federally qualified abortions," which is basically any abortion.

Abortion cannot be covered by insurance: ​​Under ARS 36-2907, abortion is not covered by insurance policies for public employees or by Medicaid. The only exception is when the life of the patient is at risk or the patient has "severely compromised health." Additionally, insurance-covered family planning services do not include abortion or abortion counseling, according to ARS 36-2989.

Religiously-affiliated employers can exclude abortion from their covered health care because “providing or paying for coverage of the specific items or services is contrary to the religious beliefs of the religiously affiliated employer offering the plan,” according to ARS 20-2329. Such employers cannot exclude prescription contraceptives, however, but can require insured employees to pay first and then submit a "claim to the insurer along with evidence that the prescription is not for a purpose covered by the objection,” under ARS 20-1404.


Providers cannot use telehealth: Telehealth appointments skyrocketed during the COVID-19 pandemic, but abortion providers in Arizona could not use them under ARS 36-3604. This ban on telehealth appointments also includes that initial appointment that patients have to attend, thus requiring two in-person appointments. It also extends to medication abortions. State Rep. Stephanie Stahl Hamilton introduced a bill to repeal this measure. It was never assigned to a committee.

The Center for Reproductive Rights lawsuit filed in May calls on the court to invalidate this measure. Similar to the 24-hour waiting period, Deady reiterated that “there is no basis in medicine for banning people from accessing medication abortion by telemedicine. Its only purpose is to make it harder for people to access care.”

No mailing abortion pills: Under ARS 36-2160, an abortion-inducing drug — such as mifepristone and misoprostol — can only be provided by a qualified physician and they cannot be provided “via courier, delivery or mail service.” Stahl Hamilton introduced a bill to repeal this measure. It was never assigned to a committee.

Parental consent: For a minor to receive abortion care, they must have the consent of their parent under ARS 36-2152. Specifically, the physician must have received a "written and notarized consent from one of the minor's parents or the minor's guardian or conservator."

If a minor wishes to receive an abortion without the consent of their parent, they can petition the court. After doing so, the court shall hold a hearing and then issue a ruling within 48 hours of the petition being filed. If a physician performs an abortion for a minor without a petition from the court or parental consent, they can be charged with a class 1 misdemeanor.

State Sen. Analise Ortiz introduced a bill to repeal this measure, among a series of other abortion restrictions in the Arizona Revised Statutes. It was assigned to a committee on Feb. 21 but never received a vote.

Ultrasound requirement: Under ARS 36-2156, a patient must receive an ultrasound 24 hours before obtaining an abortion. The physician must provide the patient the opportunity to view the active ultrasound image and hear the heartbeat if available. Further, the patient must certify in writing that she had the opportunity to review the ultrasound. Ortiz’s bill also aimed to repeal this statute.

Fetal viability: A physician cannot provide an abortion of "a viable fetus" unless the procedure is "necessary to preserve the life or health of the woman," under ARS 36-2301.01. This statute isn’t in conflict with the new constitutional amendment, which provides the fundamental right to an abortion up to viability. However, the statute also requires that the physician must state in writing the available methods and techniques considered and their reasoning behind the chosen method.

Ban on sex or race selection: Except in a medical emergency, an abortion cannot be performed because of the race or sex of the fetus, under ARS 13-3603.02. A person who knowingly performs an abortion for this reason can be charged with a class 6 felony, which could result in four months to two years of prison time for a first offender.

This part of the statute also bans patients from receiving an abortion because of a “genetic abnormality” in the fetus or embryo, which the Center for Reproductive Rights’ lawsuit is attempting to strike down. “The Reason Ban Scheme is not to make abortion safer,” Deady said. “Its only purpose is to make abortion more difficult or impossible.”

Lots of clinic requirements: Arizona requires a lot of strict, "unnecessary and burdensome standards related to their physical plant, equipment and staffing" at abortion clinics, according to the Guttmacher Institute. Under ARS 36-449.03, clinics must have adequate private space "specifically designed for interviewing, counseling and medical evaluations.” Physicians and medical directors at clinics must have additional licenses. Additionally, an abortion clinic must meet the same licensure requirements as a health care institution, under ARS 36-449.02.

For surgical abortions, the physician must have admitting privileges at a health care institution within 30 miles of the clinic and they must remain at the clinic until all patients are stable and ready to leave the recovery room. Appropriate emergency resuscitative and life support equipment and services must be available in case the patient or a "viable fetus" needs it to go to the hospital.

Additionally, the physician must discuss with the patient "immune globulin" to be available 72 hours after the procedure. If the patient refuses, the physician must get a record of that refusal. The physician must make a "good faith effort" to contact the patient within 24 hours after a surgical abortion. Oritz’s bill also aimed to repeal this statute.

Abortion reporting requirements: Under ARS 36-2161, facilities that perform abortions, such as a hospital or clinic, must submit a report to the Arizona Department of Health Services about each abortion performed. If a physician provides care to a patient in need of medical care due to complications with an abortion, the physician must file a report with the Arizona Department of Health Services under ARS 36-2162.

Under ARS 36-2162.01, physicians must submit a report to the Arizona Department of Health Services about how informed consent for an abortion was obtained. Patient confidentiality is required in this report — a patient’s name, social security number, driver's license number and insurance information cannot be included in any reports, under ARS 36-2163.

Stahl Hamilton and state Sen. Priya Sundareshan introduced corresponding bills in both chambers to repeal this restriction. Sundareshan’s bill was heard in committee but never voted on, while Stahl Hamilton’s bill never made it that far.


Death certificate: A hospital, abortion clinic, physician or midwife must submit a fetal death certificate to the state within seven days of "each fetal death occurring" after a "gestational period of 20 completed weeks or if the unborn child weighs more than 350 grams,” under ARS 36-329.

Born-alive measures: ​​If an abortion is performed and "a human fetus or embryo is delivered alive" the physician must use all available means to "promote, preserve and maintain the life of such as fetus or embryo" under ARS 36-2322. The statute doesn’t technically interfere with the constitutional amendment, but it does legislate something that almost never occurs in the first place. Laws like this have been passed by GOP legislatures across the country — and by the U.S. Congress several times — mostly to incite emotions and seed doubt about abortion providers.

Partial-birth abortion: Under ARS 13-3603.01, if a physician performs a "partial-birth abortion" and "kills a human fetus" they can be found guilty of a class 6 felony and can be fined or imprisoned for up to two years — or both. Similar to the “born-alive” law, “partial-birth” abortion laws are meant to stir up fear around abortion and ban something that doesn’t happen.

Right to refuse participation: A physician or other hospital staff is not required to "facilitate or participate in the medical or surgical procedures that will result in the abortion" on "moral or religious grounds” under ARS 36-2154.

Research bans: Under ARS 36-2302, a "human fetus or embryo" resulting from an abortion cannot be used in a study or experiment. Additionally, ARS 35-196.94 outlines that state, federal or university money can’t be used toward research projects that involve “fetal remains from an abortion or human somatic cell nuclear transfer.”

Non-physician ban: Only physicians, not physician assistants or nurses, can perform abortions under ARS 36-2155. A physician assistant also cannot "prescribe, dispense or administer" medication intended to perform or induce an abortion under ARS 32-2532. Ortiz’s bill also aimed to repeal this measure.

No payroll deductions for abortion organizations: Under ARS 38-612, no payroll salary deductions can be made for state officers or employees for making charitable financial contributions to an organization that performs an abortion or "maintains or operates a facility where an … abortion is performed.”

No abortions at Arizona Board of Regents facilities or universities: Under ARS 15-1630, abortions cannot be performed at facilities under the jurisdiction of the Arizona Board of Regents, such as state universities, unless to save the life of the patient. Further, ARS 15.115.01 specifically states that a facility run by or on the property of a public educational institution may not perform an abortion unless it's to save the life of the patient.

No teaching about abortion in schools: No school district or charter school in Arizona may "endorse or provide financial or instructional program support" to any program that doesn't present childbirth or adoption as the preferred option to abortion under ARS 15-115.

No abortion advertising: Under ARS 13-3605, a person who advertises any medicine or services for facilitating an abortion can be found guilty of a misdemeanor.

No abortions provided at medical clinics: Under ARS 48-2212, medical clinics cannot provide a medical or surgical abortion. Stahl Hamilton introduced a bill to repeal this statute. It did not get a hearing.