Summary of Current (and Most Recent) Abortion and Personhood Laws
- On September 22, 2022, an Arizona court ruled that an anti-abortion criminal law first enacted in 1864 is still enforceable. The court did not explain how the restrictions in that law should be reconciled with other abortion restrictions passed more recently, as described below. This pre-Roe law prohibits intentionally providing the means to cause a miscarriage. A.R.S. § 13-3603; See Under Advisement Ruling in Planned Parenthood Center of Tucson, Inc v. Brnovich, No. C127867, 2022 WL 4487408, at *1 (Ariz. Super. Sep. 22, 2022)
- On October 3, 2022 the Arizona Medical Association and an Arizona physician filed an action seeking to require the courts to clarify how to reconcile enforcement of this law with the more recently passed law restricting abortions after 15 weeks
- Arizona recently passed S.B. 1164, effective September 24, 2022, which generally prohibits abortion at 15 weeks after the first day of the last menstrual period, except in a medical emergency. S.B. 1164, 55th Leg., 2nd Reg. Sess. (2022).
- In 2021, Arizona enacted an “Interpretation Policy” that would grant all rights, privileges, and immunities to an “unborn child” beginning at conception, but the courts have enjoined the State from enforcing this law on the basis of it being unconstitutionally vague. (A.R.S. § 1-219). See Isaacson v. Brnovich, No. CV-21-01417-PHX-DLR, 2022 WL 2665932 (D. Ariz. July 11, 2022).
- This statute specifies it does not create a cause of action against a person who performs IVF procedures as authorized under Arizona law.
Potential impact of the law on and references to IVF and reproductive medicine if any
- Neither the law restricting abortion after 15 weeks nor the pre-Roe statute appear to affect IVF or other reproductive medicine procedures outside of the context of a pregnancy.
- The “Interpretation Policy” statute passed in 2021, establishing personhood rights beginning at conception is currently enjoined by the courts. If it goes into effect, it could affect ART procedures, although it specifically states that it does not create a cause of action against a person who performs IVF procedures as authorized under the laws of the state. (A.R.S. § 1-219). See Isaacson v. Brnovich, No. CV-21-01417-PHX-DLR, 2022 WL 2665932 (D. Ariz. July 11, 2022).
- This statute specifies it does not create a cause of action against a person who performs IVF procedures as authorized under Arizona law.unborn child.
- “Abortion" means “the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, oral contraceptives used to inhibit or prevent ovulation, conception, or the implantation of a fertilized ovum in the uterus or the use of any means to save the life or preserve the health of the unborn child, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus.” A. R. S. § 36-2151 (as referenced in S.B. 1164, 55th Leg., 2nd Reg. Sess. (2022)).
- "Attempt to perform or induce an abortion" means “to do or to omit doing anything that, under the circumstances as the physician believes them to be, is an act or omission that constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in violation of this article.” S.B. 1164, 55th Leg., 2nd Reg. Sess. (2022).
- "Unborn child" means the offspring of human beings from conception until birth (for the purpose of barring termination of a “clinically diagnosable pregnancy”). A.R.S. § 36-2151.
Penalties for violations of the applicable abortion restrictions
- A physician who knowingly and intentionally violates the abortion restrictions may be subject to criminal and civil penalties, and be found to have engaged in unprofessional conduct. A.R.S. § 36-2156; A.R.S. § 36-2152; S.B. 1164, 55th Leg., 2nd Reg. Sess. (2022).
- Under the pre-Roe statute, any person who intentionally provides the means to procure the miscarriage of a woman, shall be punished by imprisonment for 2 to 5 years, unless necessary to save the woman’s life. A.R.S. § 13-3603. It remains unclear how this law is to be reconciled with more recent laws restricting abortion.