Abortion has been at the forefront of conservative politics since the 1973 Supreme Court decision in Roe v. Wade, in which the court ruled that the Constitution protects a woman’s liberty to choose to have an abortion without excessive government restriction. Now, with a 6-3 conservative majority in the nation’s highest court, reproductive rights advocates are worried that right will be chipped away as anti-abortion politicians push legal boundaries to challenge the decision.
An Arizona bill proposed on the 48th anniversary of the landmark ruling is among the most direct challenges to Roe in nearly half a century: It calls for the decision to be ignored altogether.
Arizona has some of the nation’s most restrictive abortion laws and has three that criminalize it completely — two would give women receiving abortions and doctors performing them up to 5 years in prison, and the third makes it a misdemeanor to advertise birth control or abortions. Right now, the legal precedent set by Roe v. Wade prevents the state from enforcing those laws.
One proposed bill, HB 2650, would allow those who receive abortions and the doctors who administer them to be prosecuted for homicide, including first-degree murder. In Arizona, first-degree murder is punishable by the death penalty.
HB 2650 would also define life as beginning from the moment of conception, revoke state funding for abortion procedures and the clinics that perform them, and stipulate that county attorneys must prosecute homicide by abortion “regardless of any contrary or conflicting federal laws, regulations, treaties, court decisions, or executive orders,” including in cases of rape and incest.
Those actions are “blatantly unconstitutional,” said Sara Benesh, an associate professor who specializes in the Supreme Court and civil rights and liberties at the University of Wisconsin, Milwaukee. The supremacy clause in the U.S. Constitution deems that the Constitution is above any state or local law and that the Supreme Court is the final arbiter of the Constitution. The court has consistently upheld that the Constitution protects a fundamental right to privacy, including a woman’s right to choose to end her pregnancy up to the point of viability, meaning the fetus has reached a state in its development where it could survive outside the womb — usually defined as around 24 to 28 weeks.
In 2018, 99.1 percent of abortions occurred before 21 weeks and 92.2 percent were performed before 13 weeks, according to the Centers for Disease Control and Prevention. The Supreme Court has said in numerous opinions that it cannot define where life begins because it is a moral and religious question. States are left to work out the specifics of regulation, including at what stage of a pregnancy a fetus is viable and how abortion clinics operate.
Questions about state funding for abortions and when a fetus becomes viable have percolated for years in state-level fights and restrictive abortion laws. In 2019, Ohio, Louisiana, Mississippi and Missouri all passed “heartbeat bills,” which ban abortion after six weeks of pregnancy, the earliest point at which a fetal heartbeat can be detected, though the definition of a heartbeat itself at that stage has also been a matter of debate. All have been met with federal court challenges, blocking enforcement. A near total ban in Alabama in 2019 has been blocked with similar challenges.
Anti-abortion advocates who seek to ban abortion in nearly all cases also seek to challenge the Roe v. Wade decision by definition. More than 500 state laws have been enacted throughout the country since 2010 that further restrict or ban abortion, according to the Guttmacher Institute, many of which would only be able to take effect if Roe is overturned.
That activity has continued into 2021. So far in this year’s legislative session, South Carolina’s House approved a heartbeat bill that would charge doctors with a felony for performing an abortion after detecting a heartbeat or without checking for one, Mississippi introduced legislation that would charge anyone who performs an abortion with murder, punishable by up to 10 years in prison, and Arizona introduced four other bills that would criminalize abortion providers.
Also under consideration in Arizona is a heartbeat bill that would charge medical professionals on the same grounds as in South Carolina, labeling it a class 3 felony punishable with up to eight years and nine months in prison. Arizona’s SB 1381 would raise performing an abortion on the basis of sex, gender or disability, from a class 3 felony to a class 2, punishable with up to 10 years in prison. It would also raise the civil penalty for failing to report it from $10,000 to $20,000. SB 1457 would charge doctors who perform abortions on the basis of race, sex or a genetic abnormality with a class 3 felony. And SB 1641 would charge doctors who perform what medical professionals call a dilation and evacuation — a surgical procedure that usually takes place in the second trimester — with a class 6 felony punishable with up to 2 years in prison.
Arizona’s HB 2650 is an anomaly in that it holds the mother and the medical professionals liable for murder and leaves the death penalty on the table. It is also the only one of the abortion bills introduced this year with language that specifically asks county attorneys to ignore the federal government.
“It is an incitement of violence to put out there that people who make this health care choice somehow deserve the death penalty.”
A 2019 poll from the PBS Newshour, NPR and Marist found that 60 percent of Americans did not want abortion to be criminalized and more than 70 percent of all Americans believe that Roe v. Wade should be upheld, though some supported adding more restrictions. Polls from Pew Research, Gallup and Ipsos found similar levels of support for abortion access. But opinions were deeply divided along party lines; 31 percent of Republicans thought the Supreme Court should overturn the landmark ruling, compared to just 4 percent of Democrats, and 65 percent of Republicans said they were somewhat or very dissatisfied with the nation’s laws around abortion.
State Rep. Walt Blackman, a Republican in Snowflake who introduced HB 2650, told the PBS Newshour he does not want to see women go to jail, but he also doesn’t want to see “babies murdered.” Blackman interprets the 14th Amendment as meaning that an unborn fetus has the same rights at conception as its mother.
The 14th Amendment, one of the Reconstruction Amendments passed in the years following the end of the Civil War guaranteeing rights to freed slaves, states that all persons born or naturalized in the United States are citizens with equal protection under the law, and that states or localities cannot make or enforce laws that violate a citizen’s constitutional rights. It also says that no state can “deprive any person of life, liberty, or property, without due process of law.”
Blackman said he is concerned about the rate of abortions across the country, particularly in the Black community. CDC data shows abortion rates declined by 24 percent from 2009 to 2018, but nearly 34 percent of all abortions in 2018 were sought out by Black women, despite them making up 13 percent of women in the U.S. Abortion rights advocates argue that taking away this reproductive choice would harm the Black community more than help it.
“We, as Black women, choose abortion more than any other group in the country, and I think common sense would give you countless reasons for why that is: from poverty being overrepresented in our community to just systemic racism to higher infant and maternal mortality rates,” said Shyrissa Dobbins, a reproductive justice attorney and author of the peer-reviewed “The Myth of Abortion as Black Genocide: Reclaiming our Reproductive Choice.”
Using these statistics to take away reproductive choice dehumanizes and infantilizes Black women, Dobbins said. Criminalizing abortion would only put more Black women in prison, where they are already overrepresented.
Blackman suggested expanding foster care and adoption could be a remedy for forcing women to give birth to unwanted children.
“The idea that you could force a Black woman to give birth and that her child would have this wonderful life in foster care adoption just doesn’t line up with the numbers of what we’re seeing,” Dobbins countered.
Data shows Black children are already overrepresented in the foster care system and less likely to be adopted. In 2018, Black children made up 23 percent of children in foster care and 22 percent of those waiting to be adopted, despite making up 14 percent of children in the U.S., according to the U.S. Department of Health and Human Services.
If Blackman’s goal is to help the Black community, Dobbins said, he should focus on sentencing reforms and curbing the over-policing of the Black community rather than criminalizing abortion.
“I feel like 16-year-old me had more rights to bodily autonomy.”
Blackman holds that this bill does not take away a woman’s choice, as they can still choose to get an abortion, but must then contend with the harsh consequence: being charged with homicide. Abortion rights advocates say the bill will, in effect, make it significantly harder for women to access abortions. If doctors and nurses risk being charged with homicide for performing an abortion, many will choose not to do them and medically safe abortions will become unavailable.
Cathi Herrod, president of the Center for Arizona Policy, a nonprofit conservative lobbying group, said the center does not support the part of Blackman’s bill that criminalizes women for getting abortions.
“In the pro-life movement, we love them both,” she said. “We are not only advocating for the lives of preborn children, but also for the health and safety of their mothers.”
Herrod said she does not agree with the Roe v. Wade decision or support abortion in any case, including rape or incest, but holds that women should not be punished criminally for seeking an abortion.
But SB 1457, which would charge doctors who perform abortions on the basis of race, sex or a genetic abnormality with a class 3 felony, has Herrod’s support.
Luisa Hall Valdez, a Phoenix reproductive rights activist, said abortions should be available to those who choose to get them and should not be criminalized. If people do not support abortions, they don’t have to get one, she said.
“I feel like 16-year-old me had more rights to bodily autonomy, and that’s insane to think about,” Valdez said.
Valdez, who is now 36, said she had two abortions as a teenager, one at 16 and another at 19. She said if she did not terminate her pregnancies, she would not have been able to graduate high school early and enlist in the Army or remain in active duty. She would have become a teen mom during the 2001 economic crisis, and her life would have taken a different trajectory.
She said her experiences as a teenager and her experiences escorting pregnant women into abortion centers when anti-abortion protesters were outside of clinics fueled her activism to try gain back the reproductive rights lost since her teenage years.
Benesh, of the University of Wisconsin, said it’s unlikely the Supreme Court will overturn its decision in Roe v. Wade, even with three new conservative justices appointed in the last four years who may be more sympathetic to the anti-abortion argument. She added that the language in HB 2650, which outright disrespects the high court and the Constitution’s supremacy clause, makes the justices even more likely to uphold the decision in respect to the statute.
“The protection for abortion just sort of comes naturally from that basis for questioning the state’s role in intimate choices. It would be a huge revolution in constitutional law for the court to decide to overturn Roe,” she said.
But in the unlikely case that Roe does get overturned, Arizona is one of 24 states with laws already in the books that could immediately ban abortion entirely, according to an analysis by the Center for Reproductive Rights.
Maricopa County Attorney Allister Adel wrote in an emailed statement to PBS Newshour that she will not prosecute women for their healthcare choices, adding “I do not support this bill.” Nearly two-thirds of Arizona’s population lives in Maricopa County.
State Rep. Athena Salman, D-Tempe, said this bill is representative of “the reality that the Republicans who are coming as freshman and sophomores in these past few cycles are very extreme” and “not reflective of the state’s values.”
While HB 2650 is illegal to enforce because of its unconstitutionality, its reverberating effects will last, Salman said, and she fears harassment outside of abortion clinics will increase and more extreme bills will be introduced.
“It is an incitement of violence to put out there that people who make this health care choice somehow deserve the death penalty,” she said.
The state legislature must ensure that this bill, and other bad bills, does not become law, Salman said. She is hopeful that one day Democrats will have the majority in the state house so that they can legislate for abortion to be more accessible.
Regardless of the outcome, abortion rights advocates say extreme bills like HB 2650 — even if they fail — increase the stigma around reproductive healthcare. If HB 2650 does pass, legal experts anticipate that advocates will challenge the law in court immediately, as they have with other abortion ban bills, which would prevent it from being enforced until a court decides it can be.