2 years after Prop. 139, Arizonans are still making sense of shifting abortion laws

It’s been two years since Arizona voters overwhelmingly passed Proposition 139 into law, enshrining abortion rights until about 24 weeks gestation in the state Constitution.

But, it’s just now that many of the other restrictions that have been put in place over the years surrounding abortions in the state are also being stuck down.

Just last month, a Maricopa County judge struck down several restrictions like a 24-hour waiting period because of Proposition 139, but many more are still on the books.

The Show spoke about it with Elizabeth Ling, associate director of Legal Services at If/When/How, an advocacy organization aimed at protecting reproductive rights.

Full conversation

ELIZABETH LING: Last month, the court ruled that several restrictions are now considered unconstitutional following Proposition 139 or the Arizona Abortion Access Act. Specifically, there were previously laws that required health care providers to provide patients with biased and inaccurate information, and this was information that came from the state. That information had to be provided to anyone who was seeking an abortion in Arizona in person, so physically at the clinic.

And they also had to be provided at least 24 hours before someone was able to get care. And so that effectively meant that anyone who wanted an abortion needed to make at least two separate trips to a provider. So that restriction has now been struck down. And so people will be able to get care in just one appointment now.

LAUREN GILGER: Right. Right. There was also a restriction about the reason that folks might get an abortion, right? And that’s no longer going to be in place here.

LING: Yeah, that’s correct. So there was previously a law that said the reason for getting an abortion could not be because of a fetal diagnosis that was nonlethal. Meaning that if the diagnosis was not something that was going to result in the death of the fetus, that couldn’t be the reason why someone was seeking an abortion.

GILGER: Tell us also about this restriction on providers being able to provide tell telemedicine. Arizona residents could get abortion pills through the mail even with this law in place, but this changes things for providers?

LING: Yeah, so it changes things for providers and for people in Arizona. So prior to this decision, people in Arizona — like people all over the country in states where there aren’t abortion restrictions or abortion bans — are able to get abortion pills by mail. And there’s a number of different ways that people can do that, including by accessing care from health care providers who are licensed and physically located in different states and allowed to mail abortion pills to their patients.

But now what this decision does is it’s removed the restriction on telemedicine within the state of Arizona. So that means that providers who are physically located within the state of Arizona are now able to use telehealth to prescribe and mail pills to their patients.

GILGER: And this is all happening, Elizabeth, because Arizona voters overwhelmingly passed Proposition 139, which enshrines abortion rights in Arizona’s constitution. It’s to do with protecting abortion rights before about 24 weeks, the point of viability for a fetus.

So I think folks might have assumed that Prop. 139 passing kind of automatically made all of these restrictions on abortions go away. It didn’t.

LING: That’s correct. And that’s a really understandable confusion. The way that our legal system works is that when laws exist, they will continue to exist unless they are challenged in some way. And so although Prop. 139 did amend the constitution in Arizona, any law that existed previously was still on the books until someone actually challenged that law as unconstitutional.

And that’s what happened in this case.

Elizabeth Ling

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GILGER: OK, OK. So, your organization has a hotline, right? A national abortion hotline that you oversee, I understand. So it sounds like you kind of get a sense of the questions like this that people have coming from certain places. Tell us what you hear coming from Arizona. What kind of questions do people have?

LING: Yeah, our Repro Legal Helpline is a national legal services helpline. We talk to people from all over the country about all kinds of reproductive decisions that they may be making, including abortion care. And so I would say the questions that we get from folks in Arizona are not so different from the questions that we get from all over the country.

So ever since Dobbs, with there just being constant changes in the law, differences in the law in terms of people’s ability to access care, there’s a lot of confusion, and people don’t know what the laws in their state say. So people in Arizona have called us certainly just wanting to know, how can I get an abortion? What are my rights when it comes to accessing abortion care?

Especially considering in Arizona, there was previously a 15-week abortion ban that was also struck down. And so there’s been a lot of shifting in terms of people’s ability to access care. People ask us questions around things like those state-mandated counseling requirements, prohibition on telemedicine, things like that.

We also get questions from folks in Arizona and elsewhere around their legal risk and their legal rights when it comes to accessing abortion pills by mail. Because while it is not a crime in any state for someone to end their own pregnancy — with the exception of Nevada, and that’s only after 24 weeks — unfortunately, people have still faced some type of legal consequence when they’ve made that decision.

And so we talk to people about what that legal risk or the chance of getting into legal trouble could potentially be for themselves. And that’s based on what laws say, their circumstances, where they’re located and a bunch of other different factors that are really particular to each person.

GILGER: Right. So it sounds like every time the laws shift like this — and there has been so much of that of late, as you’re pointing out — people call, people have questions.

LING: That’s right.

GILGER: Let me ask you, though, because these particular restrictions that have been struck down now in Arizona are certainly not the only ones that are still on the books. There are many more. I want to ask about some of the laws that are still on the books. I know there’s one, at least, that’s been talked about quite a bit, which still restricts abortion prescriptions and procedures to physicians.

Like if you’re a nurse practitioner, a nurse midwife, you can’t perform this. Is that also being challenged?

LING: Well, I think that those restrictions that really limit who’s able to provide care are really harmful to people and to community members. Because you’re really, again, limiting access to who is able to provide care when there’s really no science or evidence that suggests that it’s not safe for those other advanced practitioners that you just named to be providing that care.

So I think that those are certainly laws that will continue to be challenged. What does it truly mean for something to be a constitutional right when it’s not accessible to everyone?

GILGER: Yeah. Let me ask you lastly, Elizabeth, what do you think these particular changes mean for access and maybe also for providers in the state? I think for a long time, Arizona has been seen as a state where maybe abortion providers don’t want to be because there were a lot of restrictions for a long time, and those are loosening now.

Do you think that’ll change and that’ll affect access for folks?

LING: Yeah, I certainly think this will affect access for folks. Right. We’ve talked to so many people on the helpline who are able to get an abortion in their state, but they’re not able to make those two appointments, right? Because that requires people to take time off. It requires people to get child care. It’s expensive.

And so removing these barriers — which might not sound really significant — can make a huge difference for people’s ability to get the health care that they need. And I would say for providers, I can only imagine and assume right not needing to under steps that are not supported by science and that are not, in someone’s medical judgment, necessary are huge.

And to be able to provide care to their patients without unnecessary visits and providing them with disinformation, I think those are all really — again, I can only imagine, significant changes for providers in the state of Arizona.