By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Citing a series of stories of women whose abortions have changed their lives, Gov. Katie Hobbs is urging the Arizona Supreme Court not to take that right away from them.

In a legal brief filed Thursday, Hobbs told the justices of women who have terminated their pregnancies, decisions she said that improved their lives or prevented medical complications. These included those who have been in abusive relationships.

What all that shows, the governor said through her lawyers is that reproductive decisions “are immensely personal, private and consequential.”

“These choices impact countless other life decisions, including whether to accept certain health risks or undergo certain medical procedures, how to allocate financial resources, where to live, whether to start or continue to pursue educational or career opportunities, and how to structure intimate and family relationships,” Hobbs said. “Even a pregnancy without complications involves significant physiological change and strain on the body.”

The bottom line is the governor wants the high court to reject claims by abortion foes that the ruling of the U.S. Supreme Court last year overturning Roe v. Wade and its federal constitutional right to terminate a pregnancy automatically reinstated a territorial-era state law that outlaws the procedure except to save the life of the mother.

Instead, she is asking the justices to side with the state Court of Appeals, which ruled that a law approved last year allowing doctors to perform abortions through the 15th week of pregnancy takes precedence.

And if that argument doesn’t sway the court, the governor has a backup argument.

Hobbs points out the Arizona Constitution includes a specific right of privacy, one she reminded the justices the state Supreme Court has ruled in the past provide broader protections to the individual liberties guaranteed in its federal counterpart.

“Because the effects of carrying a pregnancy to term, giving birth, and becoming a parent are profoundly life-altering, reinstatement of a near-total abortion ban raises significant questions under the Arizona Constitution,” the governor argued.

The justices are set to hear arguments in December.

What makes all this necessary was the move last year by the Republican-controlled Legislature to enact a law with a 15-week limit.

They did that in anticipation that the U.S. Supreme Court would uphold a similar law from Mississippi. The idea was to have something in place once that happened.

But the nation’s high court went farther, overturning Roe v. Wade and saying it is up to each state to decide when and how abortions can be offered.

Mark Brnovich, who had been attorney general, pointed out that lawmakers, while enacting a 15-week law, never repealed the territorial era near ban. And in September 2022 he convinced Pima County Superior Court Judge Kellie Johnson to order that old law back in effect, immediately halting the procedure in the state.

The state Court of Appeals, however, said that, at least for doctors, the new law superseded the old one.

That has allowed abortions to resume, at least through 15 weeks. But that still leaves fewer options for women in Arizona who, until Roe was overturned, could terminate a pregnancy through the point of fetal viability, considered somewhere between 22 and 24 weeks.

While Brnovich sought to restore the old law, Kris Mayes, his successor, has taken the legal position that the 15-weeks law supersedes it. That has left only Dr. Eric Hazelrigg, an abortion foe and medical director of the Crisis Pregnancy Center, as the only named party in the lawsuit asking the state Supreme Court to reinstate the territorial law, though other anti-abortion groups have filed their own briefs.

In her filing, Hobbs also told the justices that whatever they rule could end up being only temporary.
She pointed out that an initiative has been filed that would absolutely bar the state from restricting abortion prior to viability. Backers have until July 3 to gather at least 383,923 valid signatures to put the issue on the 2024 ballot.

That measure, however, actually goes farther than what had existed in Arizona before the Supreme Court overturned Roe.

It also would spell out that the state cannot adopt any policy that denies, restricts or interferes with an abortion after fetal viability “that, in the good faith of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual.” Foes have seized on this language to argue that it is so broad it would allow a women to terminate a pregnancy right up to the point of childbirth.

No matter what the Supreme Court decides, it may still leave legally unclear the question of whether women can access an abortion.

Hobbs earlier this year issued an order stripping the state’s 15 county attorneys of their ability to prosecute anyone for violating any abortion laws at all, giving that power to Mayes. And the attorney general, citing that state constitutional right to privacy, has said she does not intend to bring charges against anyone.

The governor said the real-life stories she cites in her brief illustrate how lawful abortion — even though at 15 weeks is less than before — gives women a say in these decisions.

“Simply put, access to abortion saves lives and allows women in Arizona to control their own bodies and chart their own course in life,” she said.

One comes from a 32-year-old woman, identified only as Michele, who got pregnant by a physically and emotionally violent man when her contraception failed. Hobbs said she chose to terminate the pregnancy because she did not feel she could raise the child in a healthy or safe environment.

Her partner became even more violent after the abortion and eventually went to jail.

Now, the legal papers say, she is the chief operating officer of a furniture company.

“For Michele, access to the abortion saved her life,” the governor’s brief says. “Without it, she would not have been able to leave the abusive relationship, in which she felt she was in serious physical danger, and would have been caught in a cycle of violence and economic instability.”

Another story is of a woman who became pregnant who was not in a financial position to support a child and her partner was a heroin addict. After the abortion, she went to college and now is married, living in Tucson, with two children.

Hobbs also mentioned a woman pregnant with twins, one of whom had a critical heart defect that could have complicated the life of the other. She eventually had “selective reduction” of one of the twins, albeit in Los Angeles because of the complicated nature of the procedure, with the other twin being born healthy.