While pro-life lawmakers in other states are swinging for the fences with hopes of capitalizing on the new conservative makeup of the U.S. Supreme Court, abortion foes in Arizona have been uncharacteristically quiet in 2019.
In fact, it appears that no anti-abortion legislation has been introduced in Arizona during the 2019 legislative session, the first time in at least six years that has happened.
In late March, Planned Parenthood listed Arizona as one of just nine states that hasn’t seen new abortion restrictions proposed this year, while 250 bills have been introduced in the other 41 states.
The pro-life movement has been active in state legislatures across the country this year, and in many states it’s looking to push the envelope. The most notable trend has been the push for legislation banning abortions after six weeks of pregnancy, which is before many, if not most, women even know they’re pregnant. Critics say it would effectively ban abortion in many cases.
Such legislation, dubbed “heartbeat bills” because they would outlaw abortion once a fetal heartbeat can be detected, has been enacted in Kentucky, Mississippi and Ohio. Another heartbeat bill sits on the desk of Georgia Gov. Brian Kemp, who has publicly praised the legislation. Lawmakers in several other states have introduced similar bans.
“We have never seen this many near-total abortion bans move in one year. This makes 2019 a pretty critical year,” said Elizabeth Nash, a policy analyst at the Guttmacher Institute, which advocates for abortion rights.
Other states have pushed different legislation in the wake of Justice Brett Kavanaugh’s confirmation to the U.S. Supreme Court, which buoyed the hopes of a pro-life movement that repeatedly saw its efforts blocked by his predecessor, retired Justice Anthony Kennedy.
Arkansas and Kentucky, for example, have passed new “trigger laws” that would outlaw abortion if the Supreme Court overturns Roe v. Wade. In Alabama, lawmakers are pushing legislation that would make it a felony to perform an abortion, while in Texas, a Republican lawmaker actually proposed legislation that make abortion equal to homicide, making it possible to sentence women to death for getting abortions.
Rep. Nancy Barto, a longtime champion of the pro-life movement in the Arizona Legislature, chalked up the lack of legislation to judicial roadblocks, specifically in the 9th U.S. Circuit Court of Appeals.
The 9th Circuit struck down Arizona’s 20-week abortion ban in 2013. As such, Barto said she sees little point in pursuing the more stringent six-week bans that pro-life lawmakers are pushing in other states.
“We would love to see those things move forward here, but we have to look at the court situation that we’re currently in. The 20-week ban was stopped. So, we need to be circumspect on what we can be successful at doing,” said Barto, a Phoenix Republican.
She expressed optimism that other states will pave the way for Arizona. And there are a number of cases in the judicial pipeline that will determine how far states can go in enacting new abortion restrictions.
Cathi Herrod, president of the Center for Arizona Policy, an influential Christian social conservative organization that has been the driving force behind virtually every abortion restriction proposed in Arizons for the past two decades, said her organiation is taking a wait-and-see approach with the Supreme Court.
There are a number of abortion-related cases that the court has agreed to hear, while several other cases await the court’s decision on whether it will grant certiorari.
Though the 9th Circuit has weighed in on Arizona’s 20-week ban, and other circuit courts have rejected 12-week and 6-week bans, the U.S. Supreme Court declined to hear appeals in any of those cases. Nash pointed out that the Supreme Court turned down those cases prior to President Donald Trump’s appointment of Kavanaugh or Neil Gorsuch. And abortion opponents are hoping for better luck in the 5th Circuit, which includes Mississippi, and the 6th Circuit, which covers Kentucky and Ohio.
Herrod emphasized that Arizona has passed many pro-life laws over the yeas, and said CAP is largely focusing on monitoring their implementation. And in addition to monitoring court cases from other states, she said CAP is surveying the landscape in the new legislature.
“It’s a new legislature. Sometimes, with a new legislature, you want to see how the votes are going to fall,” Herrod said.
Republican majorities stand at just 17-13 in the Senate and 31-29 in the House, the closest it’s been since the GOP wrested control from the Democrats in the 1966 election.
Jodi Liggett, vice president of external affairs for Planned Parenthood Arizona, said she’s never seen a legislative session in Arizona with no bills. Given all the restrictions that have been enacted over the past decade or so, along with the boundaries established by the judiciary, she questioned how much more abortion foes could really accomplish in Arizona.
But Liggett said she’s cognizant that there’s still time before the legislature adjourns for the year.
“We’re certainly happy to have gotten this far with seemingly no major bill. But session’s not over. We don’t take anything for granted,” she said.
For the most part, the pro-life movement in Arizona has spent 2019 playing defense.
Herrod said one of CAP’s top priorities for the session has been fighting the Democratic push to ratify the proposed Equal Rights Amendment. The pro-life movement argues that the ERA will be used to enshrine abortion rights in the U.S. Constitution, a claim that supporters of the amendment dispute. Forcing an unsuccessful vote on the ERA has become an annual tradition for Arizona Democrats, who fell short in the House of Representatives in April and the Senate in March.
CAP is also opposing restored funding for Arizona 211, a federally sponsored initiative in which people can call 211 to be referred to various services, because nothing prevents the 211 system from referring people to abortion providers. In CAP’s eyes, providing state funding for 211 would mean using tax dollars to fund abortions.
In 2018, only 3 of the more than 950,000 calls to Arizona 211 sought information on abortion providers.
The most notable abortion-related moment of the session was when House Judiciary Committee Chairman John Allen insisted on holding a hearing for a Democratic bill, despite the sponsor’s request to pull it from the committee’s schedule. The bill would have repealed a fetal resuscitation law the legislature passed in 2017. The bill’s sponsor, Rep. Raquel Terán, D-Phoenix, said Allen wanted to make a “political example” of the legislation.
As abortion opponents stand pat in Arizona, the pro-choice movement is going on the offensive. In early April, Planned Parenthood Arizona filed suit in federal court seeking to overturn several restrictions that it said cumulatively impose an unconstitutional burden on abortion rights.