An Arizona judge has struck down a series of state laws restricting abortion, concluding they all run afoul of a constitutional amendment approved in 2024 by voters.
In a 29-page ruling released Friday, Maricopa County Superior Court Judge Greg Como voided laws that:
- Impose a 24-hour waiting period before a woman can terminate a pregnancy;
- Bar doctors from performing the procedure if it is being done because of a fetal genetic abnormality;
- Require patients to listen to information superfluous to them before the procedure;
- Mandate mandatory Rh blood testing;
- Demand an in-person visit by the patient before she can be prescribed pills for a medication abortion.
In each case, Como said, the restrictions cannot stand after voters enacted Proposition 139 which says that "every individual has a fundamental right to abortion."
More specifically, the judge pointed out that the constitutional provision specifically says the state cannot enact, adopt, or enforce any law that "denies, restricts or interferes with that right before fetal viability unless justified by a compelling state interest that is achieved by the least restrictive means."
And that "compelling state interest," he noted, can be justified only if a law is enacted for the limited purpose of improving or maintaining the health of the person seeking the abortion -- and only if it does "not infringe on that individual's autonomous decision making."
Using that as a touchstone, Como said each of the challenged provisions is unconstitutional and unenforceable.
House Speaker Steve Montenegro said he disagrees with the court's conclusion.
"The law at issue were enacted to promote women's health and uphold evidence-based medical standards,'' said the Goodyear Republican, promising an appeal. "We believe the court made significant factual and legal errors in its analysis."
He and Senate President Warren Petersen intervened in the case to defend the law after Attorney General Kris Mayes would not. She said she agreed that they are unconstitutional "and cannot withstand the tests that voters stood up when they amended the constitution to protect abortion rights."
The new ruling was cheered, however, by Dr. Paul Isaacson, an abortion provider who was one of those who filed suit.
"For the first time in a long time, my patients will not have to jump through hoops to get the care they need," he said in a prepared statement.
The judge rejected arguments by Republican legislative leaders who had intervened to defend the laws that he should consider each of the challenged statutes using the standard of whether they pose an "undue burden" on women. That is the test that the U.S. Supreme Court set in 1992 when reviewing the abortion laws in Pennsylvania.
Como said that is irrelevant given what Arizona voters approved.
"This contention flatly contradicts the plain language of Arizona's constitutional amendment,'' he said.
The ruling comes a day after a separate lawsuit was filed challenging a separate law spelling out only doctors — and not specially trained advanced practice nurses — can perform all types of abortion. No date has been set for a hearing on that.
Arizona had an absolute ban on abortions until the U.S. Supreme Court ruled in 1973 that such laws run afoul of the right to privacy inherent in the U.S. Constitution.
Since that time, abortion foes have enacted a series of restrictions, like the waiting period, testing requirements and a ban on telemedicine. Prior challenges have failed.
All that changed with the 2024 approval of Proposition 139 and its "fundamental right" provision.
Ruling on each law
And it is that standard, Como said, that now needs to be applied when considering whether each of the challenged laws can still be enforced.
One makes it a felony to perform an abortion knowing that it is being sought "solely because of a genetic abnormality of the child." And doctors have to execute an affidavit prior to each procedure swearing they have "no knowledge" that is the reason a woman wants to terminate the pregnancy.
The only exception to what has been dubbed the "reason ban" is if the fetus has a condition that will almost certainly result in death within three months after birth.
Como found several problems with this, starting with patients who have a fetus with an abnormality being unable to share their reasons with the doctor for fear of being turned away.
"The reason ban is inconsistent with patient autonomy because it inhibits informed decision making," the judge said.
Como found similar issues with the requirement for a 24-hour waiting period after an initial visit, something that requires women to make two trips to the doctor.
But it's not as simple as the delay.
During the first trip, the law requires the women be told things like medical assistance benefits may be available for prenatal care and childbirth, that the state health department has a website that "describes the unborn child and lists the agencies that offer alternatives to abortion," and that "the father of the unborn child is liable to assist in the support of the child, even if he has offered to pay for the abortion."
"Providing information that is immaterial to the specific, individualized patient violates autonomy," the judge said.
More to the point, he said it does not improve or maintain the health of a woman seeking an abortion, the standard by which Proposition 139 requires any law to be judged.
"On the contrary, the purpose of the mandated disclosure is to discourage abortion and/or encourage the patient to choose childbirth,'' Como said. And he said it "places the doctor in a position of appearing to dissuade patients from having an abortion.''
What also has to happen before the procedure is performed is a mandatory ultrasound.
There also is a requirement for testing to see if a patient has an Rh antigen which the judge said can result in certain complications for patients who are beyond 12 weeks unless they are administered a shot of immune globulin. Yet Como said the law requires that testing for all patients.
"Patients face challenges in attending two separate appointments at least 24 hours apart, such as the need to travel significant distances, take time off work, obtain childcare, arrange transportation and lodging, and pay for the associated costs,'' the judge said.
Then there's the delay that could push the pregnancy past the point where a medication abortion, which is simpler, remains an option.
All that, the judge said, is unnecessary.
"This requirement forces patients to wait at least 24 hours from the first time of their first appointment, even when they are certain they want to proceed and have already considered their options,'' Como wrote.
Como also voided the ban on telemedicine which includes a prohibition on patients getting pills for a medication abortion getting the necessary pills delivered to them.
"Clinical standards of practice and evidence-based medicine do not support a ban on telemedicine for use in medication abortion,'' the judge said.
The judge acknowledged there can be medical complications, like ectopic pregnancies where a fetus develops outside the uterus. But he said doctors using telemedicine can effectively screen patients through things like a detailed history and initial symptoms of pregnancy, referring the women when needed for further diagnostic testing.
Como also made it clear he rejected evidence that abortion is an inherently risky procedure, calling it "one of the most extensively studied treatments in medicine,'' with serious complications following it "very rare.''
And there's something else.
"Abortion is safer than carrying a pregnancy to term,'' the judge said, saying that the mortality rate for pregnancy and childbirth is over 10 times that of abortion. And he said claims of "negative mental health outcomes'' are rejected by the general consensus of the scientific community.
