SCOTUS ruling in Dobbs v. Jackson Women’s Health overturns Roe v. Wade. What happens in Arizona is not yet clear

In a ruling on Dobbs v. Jackson Women’s Health Organization out of Mississippi, released Friday, June 24, the U.S. Supreme Court has overturned the 1973 ruling in Roe v. Wade that legalized abortion nationwide 49 years ago.

The court held that the U.S. Constitution does not confer a right to abortion. The court thus overruled both the 1973 Roe v. Wade ruling and 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey ruling. Per the ruling, the authority to regulate abortion is returned to the people and their elected representatives.

In a 6-3 opinion by Justice Samuel Alito, the ruling reversed and remanded a lower court ruling on Dobbs. Justices Clarence Thomas and Brett Kavanaugh filed concurring opinions. Chief Justice John Roberts filed an opinion concurring in the judgment. Justices Breyer, Sonia Sotomayor and Elena Kagan filed a dissenting opinion.

Read the Dobbs v. Jackson Women’s Health Organization ruling here:

What happens in Arizona is not quite clear as there are two laws affecting abortion access and penalties, one passed this year banning abortion after 15 weeks and another law predating Arizona’s statehood in 1912.

Adopted in the “Howell Code” in 1864, then passed again in 1901, before statehood, Arizona Revised Statute §13-3603 remains on the books since 1913.

ARS §13-3603 reads: “Definition; punishment 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.”

While many legal scholars believe ARS §13-3603 to be unconstitutional and unenforceable due becoming law when Arizona was not yet a state — and did not go through the process of becoming law, e.g., being signed by an presidentially-appointed territorial governor, not an elected one, etc. — it’s unclear how the courts may interpret its legal standing. It has been cited and ruled unconstitutional before in Nelson v. Planned Parenthood Center of Tucson, 505 P.2d 580 (Ariz. Ct. App. 1973), review denied, No. 11160-PR (Ariz. Mar. 21, 1973); and State v. New Times, 511 P.2d 196 (Ariz. Ct. App. 1973).

On March 30, of this year, Arizona Gov. Doug Ducey signed into law Senate Bill 1164, which bans abortions after 15 weeks of pregnancy except if necessary to save the mother’s life. It is scheduled to take effect 90 days after the current Arizona State Legislature adjourns its session. The legislature just passed its budget and is set to adjourn June 30, though that date could change. If it does adjourn June 30, the law goes into effect Thursday, Sept. 22. Physicians could face felony charges and lose their professional licenses if they perform an abortion after 15 weeks.

Under Senate Bill 1164, ARS §13-36-2322 reads:

“A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report required to be filed with the department as set forth in subsection C of this section. The determination of probable gestational age shall be made according to standard medical practices and techniques used in the medical community.
B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.
C. In every case in which a physician performs or induces an abortion on an unborn human being whose gestational age is greater than fifteen weeks, the physician, within fifteen days after the abortion, shall file with the department, on a form supplied by the department, a report containing all of the following:

1. The date the abortion was performed.
2. Specific method of abortion used.
3. The probable gestational age of the unborn human being and the method used to calculate gestational age.
4. A statement that the abortion was necessary because of a medical emergency.
5. The specific medical indications supporting the determination that a medical emergency existed.
6. The probable health consequences of the abortion.
7. The physician’s signature as the physician’s attestation under oath that the information stated is true and correct to the best of the physician’s knowledge.

D. Reports required and submitted pursuant to subsection C of this section may not contain the name of the maternal patient on whom the abortion was performed or any other information or identifiers that would make it possible to identify, in any manner or under any circumstances, a woman who obtained or sought to obtain an abortion.”

Under Senate Bill 1164, ARS §13-36-2324 excludes women from prosecution. It reads:

“Violation; classification; exclusion from prosecution
A. Any physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B is guilty of a Class 6 Felony.
A pregnant woman on whom an abortion is performed, induced or attempted in violation of section 36-2322 may not be prosecuted for conspiracy to commit any violation of this article.”

Notably when addressing enforcement under Senate Bill 1164, lawmakers did not make any changes to ARS §36-2326 Under Senate Bill 1164. Section 2 reads:

“This act does not:

1. Create or recognize a right to abortion or alter generally accepted medical standards. The Legislature does not intend this act to make lawful an abortion that is currently unlawful.
2. Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.“

Whether ARS §13-3603 or Senate Bill 1164 is the law of Arizona may face a lawsuit.

The Dobbs ruling release today echoes a Alito’s draft opinion from February leaked to the public in late May. The leak was a rare breach of the court’s traditional secrecy regarding its internal deliberations.

The 1973 Roe v. Wade opinion granted abortion protections under the right to privacy per the 14th Amendment and the 9th Amendment reserving the rights of the people to which the government could not overrule, “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”
— Roe, 410 U.S. at 153

But notably did not grant absolute right to privacy, “A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
— Roe, 410 U.S. at 154.

In a concurrence, Chief Justice Warren Burger deferred the decision of abortion to doctors, suggesting that if two doctors agreed an abortion was warranted and should proceed, the state should not interfere: “I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.”

Associate Justice William Rehnquist (later chief justice) dissented based on the history of anti-abortion laws preceding the 14th Amendment.

Meanwhile Associate Justice Byron White dissented by stating the court exceeded its power in weighing whether a fetus or a pregnant woman had more rights that the other: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand.”

The Roe v. Ruling from 1973: