By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A Tucson lawmaker wants to give voters a chance to revisit — and at least partly reverse — their decision to enshrine the right to abortion in the Arizona Constitution.

The proposal by Republican Rep. Rachel Keshel leaves the language approved by voters in November that women have “a fundamental right to abortion.”

But her HCR 2058 would permit the legislature to deny, restrict or interfere with that right if it determined to be “rationally related to a legitimate state interest.” If that isn’t clear, Keshel lists some of what that would include — like “respect for and preservation of prenatal life at all stages of development.”

That is a far cry from Proposition 139, which spells out that prior to fetal viability — generally considered between 22 and 24 weeks — it would only allow legislation with a “compelling state interest.”
That is defined as a measure designed to improve or maintain the health of an individual seeking abortion care. There is no mention of the health of the fetus.

The initiative approved by voters says that any restriction cannot “infringe on that individual’s autonomous decision making.”

All that is stripped out in HCR 2058.

Instead, Keshel’s proposal would add preservation of prenatal life as a legal reason for lawmakers to intercede. But she sidestepped a question of whether the language about the verbiage inserting the ability of lawmakers to preserve prenatal life at all stages of development.

“I have very brilliant attorneys who helped me with this bill,” Keshel said.

Her measure, if approved by voters, also would let legislators outlaw any “particularly gruesome or barbaric medical procedures,” though it does not define what that includes.

Keshel, however, said she has an idea of what that means.

“Do you think ripping a baby’s limbs off is barbaric?” she asked.

“Almost 50% of abortions are surgical,” Keshel said. “And that’s what they do.”

So would this allow lawmakers to outlaw surgical abortions?

“I’m not saying that,” Keshel responded. “But you asked what I would consider ‘barbaric.’ And that would be one of them.”

Lawmakers also could enact restrictions in “mitigation of fetal pain.” And it would constitutionally permit legislation to prevent discrimination on the basis of race, sex or disability.

That last provision, Keshel said, is designed to keep in place various law already approved by the Republican-controlled legislature.

One makes it a felony to perform an abortion when a woman seeks it because of the sex or race of the child. And a similar penalty exists for doctors who terminate a pregnancy knowing the woman wants the abortion “solely because of a genetic abnormality of the child.”

Keshel said she sees nothing wrong with seeking to bring back the issue just four months after voters approved Proposition 139 by a margin of 3-2.

“I think voters were mislead on Prop. 139,” she told Capitol Media Services. “There were a lot of untruths about it.”

Among the things Keshel she said were effectively hidden from voters is that the measure allows a pregnancy to be terminated even after fetal viability.

The language of the initiative did spell out that post-viability abortions would be allowed when a treating health care professional determines it is necessary to protect the life or the physical or mental health of the woman. But some news sources did describe the measure as providing a right to abortion up to fetal viability.

Her proposal, which has yet to be scheduled for a hearing, already is getting attention from some of the groups behind approval of Proposition 139.

“The amendment directly runs counter to the will of the people and seeks to undermine the key provisions of the constitutional language Arizonans already approved,” said Israel Cook, state legislative council for state policy and advocacy at the Center for Reproductive Rights.

“Instead of honoring the mandate to protect and expend reproductive freedoms, this measure attempts to roll back those rights,” she told Capitol Media Services in a prepared statement.

“The Arizona Legislature should respect the democratic process, stop wasting taxpayer resources, and focus on implementing the voter-approved protections without interference.”

Exactly what those protections are, however, is not yet clear.

At the time Proposition 139 was approved, abortions were legal only through 15 weeks of pregnancy. While the initiative put that “fundamental right” to abortions into the Arizona Constitution, it did not specifically spell out that it overruled the 15-week ban.

Unwilling to risk criminal prosecution, Planned Parenthood went to court to ask for a declaration the 15-week limit is now no longer valid. And Attorney General Kris Mayes, a supporter of Proposition 139, agreed.

But to date, Maricopa County Superior Court Judge Frank Moskowitz has yet to issue a ruling.

That’s just the tip of the legal iceberg. There are a host of other laws on the books, ranging from 24-hour waiting periods to requirements for ultrasound, that have yet to be declared unenforceable.

Erika Mach of Planned Parenthood Advocates of Arizona focused in on that yet-to-be answered question of what is legal and what is not in the wake of Proposition 139.

She noted some bills have been introduced this session to take the old laws off the books. But Mach said there has been no action in the Republican-controlled Legislature.

“Instead of ignoring the will of Arizonans, our lawmakers should be focused on assigning to committee the much-wanted legislation that has been introduced to repeal the dozens of abortion restrictions that are out of step with Prop. 139,” she said.

The American Civil Liberties Union of Arizona, also involved in getting Proposition 139 approved, also lashed out at Keshel’s proposal.

“HCR 2058 is a slap in the face for millions of Arizonans who voted ‘yes’ in Proposition 139, guaranteeing the right to abortion in the state constitution,” said Darrell Hill, the organization’s policy director.

He said the state should not open the door again to allowing the legislature to enact restrictions.

“A majority of Arizonans believe that only patients and providers should be involved in making healthcare decisions about pregnancy and abortion, free from government interference,” Hill said, saying the organization “will vigorously fight against the return of any attempt to ban abortion.”