State lawmakers are moving to make criminals out of doctors and pharmacists who send abortion-inducing drugs to Arizona women — as well as those who seek them — but questions remain over whether the bill is constitutional.
Legislation awaiting the vote of the full Senate would make it a Class 4 felony for health care providers, pharmacists, manufacturers or suppliers to send such a drug in Arizona. That carries a presumptive penalty of 2 1/2 years in state prison.
Rep. Rachel Keshel (R-Tucson) is sponsoring HB 2364 and pointed out that state law already makes it illegal for any of these people to arrange to have such drugs delivered. All this does, she says, is put some teeth in the law.
What's in Keshel’s bill is modeled after a similar law in Texas. But HB 2364 has something not in the Texas law: it also declares a Class 1 misdemeanor for anyone who "orders, solicits, requests, receives or attempts to receive" an abortion-inducing drug, whether by mail, courier or any other delivery service. Violators would be subject to six months in county jail."
At the heart of the debate is Mifepristone. Generally used in combination with another drug, it is considered effective in terminating pregnancies up to about 10 weeks. The most recent data available shows nearly half of the more than 13,000 abortions in Arizona in 2024 were performed with Mifepristone.
The legal issue here is the ability to obtain the drug without an in-person visit to the doctor. That generally involves the use of "telemedicine," having virtual consultations, whether by video or text, and having the drug sent to the person's home.
"Arizona law already prohibits the mailing and delivery of abortion-inducing drugs," Keshel told colleagues during debate on the measure. "What is missing in the statute is clear enforcement mechanisms. This bill, HB 2364, basically just closes that gap."
Keshel said the prohibition and the penalty she wants to add is justified.
"It is obviously taken to end the life of a preborn child," she said. "And I believe that life starts at conception, in the womb."
Beyond her personal feelings, Keshel told colleagues the ability to get the drug through an online consultation has led to abuses.
She cited one example of a Texas attorney who was sentenced to 180 days in jail after he pleaded guilty to obtaining an abortion drug and putting it into the drinks of his pregnant wife. In another case, Keshel said an Ohio man was indicted for ordering abortion drugs using his estranged wife’s information and giving them to his pregnant girlfriend.
"So we need to take this very seriously," Keshel said.
The legislation drew support from Dr. Erica Kreller, a board certified obstetrician and gynecologist in private practice. She told lawmakers she has treated women who have suffered complications after obtaining the abortion drug in the mail.
"Many of them had taken the pill beyond the recommended 10 weeks, either because they didn't know how pregnant they were or didn't understand the increasing risks of taking it at a later gestational age," Kreller said.
But Rep. Stephanie Stahl Hamilton (D-Tucson) said all this runs up against Proposition 139. Approved by voters in 2024 by a 3-2 margin, it provides a fundamental right of women to terminate a pregnancy up until fetal viability, generally considered to be between 22 and 24 weeks.
"Arizona voters made their intent clear when they protected their right to reproductive freedom in our state constitution," Stahl Hamilton said. "This bill, not only would it punish Arizonans for seeking legal medical care and threaten doctors and pharmacists with criminal (charges) simply for helping patients, it goes even further by turning patients into potential criminals. No Arizonan should face prosecution for making a personal medical decision in consultation with their health care provider."
Sen. Lauren Kuby (D-Tempe) said if there was any doubt about the scope of Prop. 139, that was resolved just last month when Maricopa County Superior Court Judge Greg Como struck down a number of pre-existing laws regulating abortion. And one of them that the judge found unconstitutional was a ban on telemedicine, the procedure by which women can obtain the abortion drug without an in-person visit to a doctor.
"Telemedicine abortion is safe and effective, based on accepted clinical standard of practice and evidence-based medicine," Como wrote. The judge added that, by taking a detailed history of a patient, a doctor can determine if telemedicine is inappropriate and the patient should be referred to someone for an in-person visit.
Katarina White, testifying at the Legislature on behalf of Arizona Right to Life, told lawmakers what is in Prop. 139 is legally irrelevant. She argued that federal law prohibits mailing abortion pills.
That, however, may not be true.
An opinion issued in 2022 by an assistant U.S. attorney general acknowledged an 1873 law known as the Comstock Act, which declares anything designed to produce an abortion, including drugs, as "nonmailable matter." The opinion goes on to say the Comstock Act does not apply in any situation where the sender can’t know if the recipient will use the drugs illegally, and Mifepristone remains legal under federal law.
It also has been legal for doctors to prescribe in Arizona, even before Judge Como's ruling voiding the telemedicine ban
"Perhaps you know more than the courts," Kuby responded to White. And she disputed claims of danger from allowing abortion pills, prescribed by a doctor — even remotely — to be delivered.
"It's not about safety," Kuby said. "It's about control: controlling women and their health care decisions."
Sen. Analise Ortiz (D-Phoenix) took a swat at Republican lawmakers who support the measure.
"Arizona voters passed Proposition 139 with overwhelming support — including in every single one of your legislative districts," Ortiz said. "The right to access abortion was more popular on the ballot than legislative Republicans."
Keshel’s measure, which has cleared the House and a Senate committee, still needs approval of the full Senate before going to Gov. Katie Hobbs, who has a record of vetoing measures to restrict abortion rights.
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