Status of Abortion Law in Arizona
Abortion has been illegal under Arizona law since statehood and up until January 22, 1973. This law states:
A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years (A.R.S. § 13-3603).
Here, the term intent to procure miscarriage means abortion.
The year before the U.S. Supreme Court decided Roe v. Wade, an Arizona state court upheld the abortion law as constitutional. However, when the U.S. Supreme Court handed down the Roe opinion in 1973, that same state court stopped enforcement of the abortion law based on Roe.
Thus, the day before the Roe decision, abortion was illegal in Arizona. The day after the Roedecision, abortion was legal.
Now that Roe is overturned, Arizona’s pre-Roe abortion law should be the law of the state.
Arizona’s abortion law has never been repealed even after Roe made it unenforceable. Over time, some lawmakers have filed bills and amendments to repeal it, but the Arizona Legislature has chosen to keep it time and again. Just last year, the Legislature repealed a different pre-Roe law punishing a woman for getting an abortion but kept the pre-Roe law above that punishes the abortionists. The Legislature’s intent is clear—to stop abortion while supporting both the pregnant woman and her child.
Arizona Attorney General Mark Brnovich has publicly stated that the pre-Roe abortion ban is good law in Arizona and enforceable. On July 13, 2022, Attorney General Brnovich filed to have the 50-year injunction on the abortion law from 1973 lifted.
On September 23, 2022, Pima County Superior Court Judge Kellie Johnson issued a 7-page ruling in which she ordered the 1973 injunction of the law to be lifted. The abortion industry appealed Judge Johnson’s ruling. On October 7, 2022, a three-judge panel on the Arizona Court of Appeals, Division Two blocked enforcement of the pre-Roe law. On December 30, 2022, the court ruled the pre-Roe law does not apply to physicians, effectively eviscerating the law pending further appeal. The court held that the Arizona law limiting abortion after 15 weeks is the governing law, and thus physicians can perform elective abortions on unborn children through 14 weeks gestational age. Read the opinion here.
An appeal is likely. Alliance Defending Freedom (ADF) is already an intervenor in the case representing unborn infants. On January 27, 2023, the Arizona Supreme Court granted ADF’s motion for extension of time to file a petition for review. ADF had until March 1, 2023, to file its appeal.
What about Arizona’s law limiting abortion after 15 weeks? In 2022, the Arizona Legislature passed a bill, SB 1164, prohibiting abortions after 15 weeks gestational age. It passed the law just in case the Supreme Court placed the abortion prohibition line at 15 weeks instead of overturning Roe. The 15-week law specifically and clearly states it does not repeal the pre-Roe abortion ban on abortion.
In the future, watch for the Arizona Supreme Court to review the appeals court ruling and lift the injunction on the pre-Roe abortion law. Until the courts resolve the litigation over the pre-Roe law, the 15-week limit is in effect and enforceable.
This publication includes summaries of many complex areas of law and is not specific legal advice to any person. Consult an attorney if you have questions about your specific situation or believe your legal rights have been infringed. This publication is educational in nature and should not be construed as an effort to aid or hinder any legislation. This Policy Page may be reproduced without change and in its entirety for non-commercial purposes without prior permission from Center for Arizona Policy, Inc. © December 2019 Center for Arizona Policy, Inc. All rights reserved.