Abortion is still legal in Arizona. But confusion and fear abound

·7 min read

A day after the supreme court upended reproductive freedom by overturning Roe v Wade, nine out of Arizona’s 10 clinics stopped providing abortions.

Arizona was not among the states with trigger laws that automatically banned most abortions after the ruling in June reversed 50 years of legal precedent, yet a slew of confusing and contradictory laws meant abortion care became virtually impossible to access anyway.

Related: In Arizona, legal confusion halts abortion services at Planned Parenthoods

Planned Parenthood, which has four clinics in the state’s three largest cities, has not resumed abortion care due to the legal chaos – signaling a de facto ban that has forced hundreds of women and girls to travel out of state, seek treatment online or continue unwanted pregnancies.

“Our elected officials are playing politics with patients. This comes straight out of the anti-abortion playbook and unfortunately it’s been successful in sowing chaos, confusion and fear among providers and patients in the state,” said Brittany Fonteno, president of Planned Parenthood Arizona, which used to provide about 5,000 abortions annually.

Abortion in most circumstances remains legal until 20 weeks of gestation. Yet within hours of the supreme court decision overturning Roe, some Republican officials falsely claimed that a total ban was back in place. The confusion has forced many clinics to suspend or reduce the services they can provide patients.

Dr Deshawn Taylor runs the independent Desert Star family planning clinic in Phoenix and has provided abortion care for more than 21 years. For her, it was a tough decision to suspend services but being a Black doctor made her feel particularly vulnerable.

“We know that Black people are the first to be criminalised in this country … I’m a Black woman, all my staff are Black and many of our patients are people of color. Abortion is still legal but that would not stop someone from causing a legal disaster that I would not be able to recover from,” Taylor told the Guardian.

Taylor restarted abortion care in mid-July, but is offering a muchreduced service – in large part due to staff concerns fueled by misinformation and uncertainty surrounding the legal situation. (One person left, another cannot be convinced that they won’t face criminal charges, and it has been impossible to recruit new staff.)

The clinic now offers only medical abortions, whereas previously Taylor provided 90 to 100 surgical abortions a month to patients who needed a later termination and those who simply preferred the surgical procedure because it’s faster, more reliable and less painful.

“It’s extremely frustrating that I can’t help my patients to the full extent because of the confusion and misinformation … I’m absolutely sure that more women are being forced to continue pregnancies,” said Taylor.

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The post-Roe landscape in the US can be loosely divided into three categories: states that have implemented total (or near-total) bans, abortion-friendly states struggling to keep up with the increased demand, and states – like Arizona – where the confusing legal situation has reduced access to abortions.

In Arizona, three laws are being wrangled over:

  • A so-called personhood law

  • A ban after 15 weeks due to take effect in late September

  • A 19th-century law banning all abortions

In 2021, a two-part anti-abortion bill was signed into law by Governor Doug Ducey which gave fetuses rights from the moment of conception – a so-called personhood law – and made it a crime for doctors to provide abortions for foetal abnormalities.

At the time, Roe made the personhood law unconstitutional by default, while a court blocked the foetal abnormality exclusion. Doctors now face prison time if they terminate pregnancies solely on the basis of non-fatal conditions like cystic fibrosis or Down’s syndrome.

When Roe fell, advocates quickly filed a lawsuit to block the personhood law, and won after a federal judge last month ruled that the law is too vague and risks arbitrary enforcement. In court filings, the state attorney general, Mark Brnovich, admitted that it was “anyone’s guess” how the law applies. The injunction has not yet been appealed.

Earlier this year, Governor Ducey signed another law that bans almost all abortions after 15 weeks except in extreme medical cases – similar to the Mississippi law that led to the supreme court’s Dobbs ruling.

The 15-week legislation will come into force around 24 September – unless a court rules that a law dating back to 1864 banning all abortions unless deemed medically necessary to save a woman’s life is in fact still valid. The pre-statehood legislation has been condemned as “draconian” by advocates and carries a mandatory two- to five-year prison sentence for anyone who helps or provides a termination.

Republicans disagree over which law takes precedence, with Ducey arguing for the recent 15-week law, while Brnovich has claimed that the total ban is in effect. Brnovich has also asked the court to lift the post-Roe injunction on the ban “in order to provide further clarity and uniformity”, according to Brittni Thomason, spokesperson for the AG’s office.

Thomason points out that the pre-statehood law was re-codified by the legislature in 1977, and recent legislation explicitly states that the law remains valid and not repealed. “While there will always be people who try to shoot the messenger, Brnovich’s fidelity to the rule of law is beyond reproach.”

It’s confusing, but there’s more: legislation chipping away at abortion access has been passed by the Republican-controlled legislature and governor every year bar one since 2009. (Before that Democrats controlled the governorship for 12 years and vetoed several bills.)

Graffiti sprayed at Wesley Bolin Plaza can be seen after multiple nights of abortion-rights protests at the Arizona capitol in Phoenix in June.
Graffiti sprayed at Wesley Bolin Plaza can be seen after multiple nights of abortion-rights protests at the Arizona capitol in Phoenix in June. Photograph: Ross D Franklin/AP

Advocates argue that this slew of restrictive laws is in fact evidence that the legislature has for years implicitly recognised abortion as a legal regulated medical procedure.

“Arizona is the textbook example of chaos and uncertainty, with providers and patients trying to figure out the law. It’s a mess. The attorney general has refused to provide clarity, and you have to conclude that’s because abortion opponents want providers to be conservative in the way they offer care to avoid legal risks,” said Elizabeth Nash, state policy expert at the Guttmacher Institute.

A hearing next Friday will help decide the future of abortion access in the Grand Canyon state. It remains to be seen whether the court will rule to validate a total ban first enacted before Arizona became a state, but what’s clear is that further restrictions to access are inevitable. For now, the best-case scenario is that abortion access is reduced from 20 to 15 weeks of gestation.

“The 1864 law the attorney general is trying to enforce is cruel, draconian and completely out of step with what the vast majority of Arizonans want. We hope the judge will give us some clarity,” said Fonteno from Planned Parenthood, who will argue against the total ban being resurrected.

Almost 90% of Arizonans want abortion to remain legal, at least in some circumstances.

In any case, abortion will almost certainly end up in the state supreme court, which the outgoing governor has packed with a conservative majority.

One thing that everyone agrees is that there is a lot hanging on the November midterms and 2023 legislative session in Arizona – and across the country. The Trump-backed Republican candidate for attorney general, Abe Hamadeh, has said the total ban is the state law, while the Democrat candidate, Kris Mayes, has said she considers all three laws under dispute to be unconstitutional and will not enforce them.

The Guttmacher Institute expects more states to ban and restrict abortion access next year, with some Republican-controlled legislatures likely to implement overlapping restrictions in an effort to make access impossible inside and outside the state. “It’s a very scary time, and people’s lives and futures do hang in the balance,” said Nash.

Dr Taylor said: “My biggest fear is that after all the righteous indignation, people don’t show up to vote in November and we become the next Texas.”