PHOENIX — The 1973 U.S. Supreme Court ruling legalizing abortion was a “mistake” that the justices need to correct, Gov. Doug Ducey said Wednesday.
But he won’t say where he believes Arizona should draw the line if the high court returns the right to regulate the procedure to the states.
Ducey’s comments came as the Supreme Court was hearing arguments about the legality of a Mississippi law which makes it illegal to terminate a pregnancy after 15 weeks. That means it is possible that the justices could declare that law enforceable without overturning Roe v. Wade about the rights of pregnant women.
That, in turn, would appear to open the door to Arizona lawmakers, who approved a 20-week ban a decade ago only to have it struck down by a federal court, would be able to approve a similar statute.
But there’s a larger issue looming.
Mississippi officials who approved that state's law and are pursuing the case have made it clear they want the justices to uphold not just the 15-week ban but to declare that Roe and its successor rulings are no longer binding legal precedent. And if that turns out to be what the justices decide, that would return the decision to individual states.
Legislators in some states already have approved “trigger” laws that automatically would outlaw abortion if the justices overturn Roe.
That has not happened in Arizona.
But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, told Capitol Media Services the state’s pre-1973 laws were never repealed. And the way Herrod sees it, if Roe is no longer binding, prosecutors are free to start enforcing them again.
Even if that is the case, the issue would once again be before legislators and the governor. And they would have to debate whether to keep the law as it is, with its absolute ban on abortion from the moment a pregnancy occurs — and with no exceptions in cases of rape or incest.
“In terms of the law, the legislation, the court, that’s something for reflection on the specifics and the details,” the governor said Wednesday about where to draw the lines about what would or should be illegal. But Ducey said there is no question about his own beliefs.
“Life begins at conception,” the governor said. “If it didn't begin at conception, when else would it begin?”
Ducey has said in the past, however, he supports “limited exceptions” to an outright ban.
The governor said he was not monitoring Wednesday’s legal arguments in Washington.
“But I am hopeful we will protect life in this country and the court will find a way there,” he said.
The pre-1973 Arizona law is quite clear.
It makes it a crime to use drugs or “any instrument or other means whatever” with the intent of abortion a fetus. The sole exception is to save the life of the mother.
The statute says anyone convicted must be imprisoned for no less than two years and no more than five.
But state lawmakers, perhaps anticipating that Roe would be overturned and the old abortion laws would come back, earlier this year approved —and Ducey signed — a measure repealing a companion statute which imposed the same criminal penalties on women who take drugs or submits to a medical procedure with the intent to abort a fetus.
Herrod said the support of abortion foes for that change makes sense.
“The pro-life movement loves them both: the woman and the pre-born baby,” she said. Herrod said that the laws should be aimed at “the abortion industry (that) takes advantage of women in a vulnerable situation.”
If the justices overturn Roe they would be discarding nearly five decades of precedent which have concluded that, at least prior to a fetus being viable, the state cannot interfere with the right of a woman to terminate her pregnancy. That got the attention of Justice Sonia Sotomayor, who questioned the Mississippi attorney general about whether the message would be that the court, with its different membership than 1973, would simply be acting politically.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked.
Ducey, asked the same question by reporters Wednesday, said he was not concerned about striking down long-term precedent.
“The court needs to do its job,” he said. “The court needs to follow the Constitution. And when the court discovers a mistake has been made in the past, the court has a right to correct it.”
Less clear is what overturning Roe would mean to another statute, also still on the books, which makes it a misdemeanor to offer abortion services. That same statute, in fact, also makes it a crime to advertise any medicine “for prevention of contraception.”
Since taking office in 2015, Ducey has signed a series of measures approved by the Republican-controlled legislature dealing with abortions.
That year the governor inked his approval to a measure that tells women they can reverse the effects of a drug-induced abortion part-way through the process, an assertion that has been questioned by some doctors. That same law also bars women from buying any health care plan through the federal insurance marketplace that includes abortion coverage.
Two years later he signed into law what appears to be the most comprehensive restrictions in the country on what doctors have to do if a baby is born alive during an abortion. It says if there is a live birth, it is the duty of any doctors in attendance see that “all available means and medical skills are used to promote, preserve and maintain the life of such fetus or embryo.”
That move came over the objection of doctors who said it would be cruel to subject a premature or severely deformed baby to extraordinary measures that will not save its life. Instead, they said the practice is to provide comfort to the baby and, if the family wants, give it to the mother to hold.
And the bill he signed earlier this year — the one removing the criminal penalties on women who seek an abortion — makes it illegal for a doctor to terminate a pregnancy if the woman is seeking it because the fetus has a genetic defect.
U.S. District Court Judge Douglas Rayes in September blocked the state from enforcing that law saying it imposed an undue burden on women. And that, he said, outweighs any interest the state claims to have in promoting life.
That case is on appeal.
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