By Howard Fischer
Mail | X: @azcapmedia

PHOENIX -- Arizona is getting a right to abortion in the state constitution.

Results so far from Tuesday's election show more than 60% of those who went to the polls supported Proposition 139.

It allows women to terminate a pregnancy without state interference until the point of fetal viability. That is generally considered somewhere between 22 and 24 weeks.

Current Arizona law sets a 15-week limit, with no exceptions for rape or incest. Chris Love, spokesperson for Arizona for Abortion Access, said voters here sent a clear message that was not acceptable.

"Next time the nation wonders how much government interference in reproductive health care is acceptable, or what type of arbitrary abortion ban is popular, they can look at Arizona and know the answer is 'none,'" she said in a prepared statement.

And Victoria Lopez, director of programs and strategies at the American Civil Liberties Union of Arizona, said putting Proposition 139 in the state constitution will protect against "the whims of extremist politicians seeking to ban abortion completely."

But there is no fixed end date in Prop 139 at which an abortion could be performed. After viability, it permits the procedure if a treating health care profession makes a "good faith judgment" that terminating the pregnancy is necessary to protect the life or physical or mental health of the pregnant individual.

Foes, operating under the banner of It Goes Too Far, argued that language is really no restriction at all.

Aside from the fact that it allows any "treating health care professional" to make the judgment call — and not necessarily the woman's own obstetrician -- they said the exception for mental health amounted to allowing a pregnancy to be terminated at any point prior to birth.

Arizona for Abortion Now did not specifically dispute that. But supporters said women don't wait until they are that far into a pregnancy to decide to have an abortion unless there is some very specific reason, like a late-diagnosed medical problem.

And the most recent report of the state Department of Health Services shows that, out of 11,407 abortions performed in 2022, just 25 were at or after 21 weeks.

But Cindy Dahlgren, communications director for the anti-abortion Center for Arizona Policy, said the heavily funded campaign by supporters of the measure -- they raised more than $35 million -- drowned out the concerns of foes. And she said they lied about what would happen if the initiative was not approved, leaving Arizona with an existing law allowing abortions only until the 15th week of pregnancy.

One argument by supporters in TV commercials was that the current law would forbid doctors from dealing with miscarriages and other medical emergencies beyond 15 weeks, meaning that women would have to wait until their own lives were in serious danger.

But Attorney General Kris Mayes, a supporter of Prop 139, acknowledged in June that doctors can't be prosecuted for performing abortions after 15 weeks as long as they make a "good faith clinical judgment" that the procedure is necessary to prevent a woman's death or "substantial and irreversible impairment of a major bodily function."

More to the point, Mayes said a doctor "need not wait for the patient to deteriorate or inch closer to death."

In campaigning against the measure, opponents also said that, as a constitutional amendment, it would override any other existing laws, ranging from requirements for an ultrasound to a 24-hour waiting period.

They also noted that even backers, including Mayes, said it is less than clear whether it also would void laws prohibiting a minor from getting an abortion without either parental consent or permission of a judge.

But their ability to get out their message was hampered by limited resources. As of the last pre-election report, foes had collected less than $1.4 million in donations.

The whole issue of abortion rights rocketed to the surface in 2022 when the U.S. Supreme Court overturned Roe v. Wade, the 1973 landmark decision that women have a constitutional right to terminate a pregnancy.

That, in turn, returned the decision of what is acceptable to each state.
And it was further complicated when the Arizona Supreme Court concluded last year that 2022 ruling allowed the state to once again enforce an 1864 law that made it a crime to perform an abortion except to save the life of the mother.

That old law was in effect only briefly amid court fights, culminating with the narrow decision by state lawmakers earlier this year to repeal it. That left in place a 15-week limit, albeit one without exceptions beyond that point for rape or incest.

One point during the campaign was the fact that if Prop 139 were defeated, it would leave the decision on abortion rights to state lawmakers. And many of them made it clear during that debate over repeal that they were in favor of a ban.

But Proposition 139, as a constitutional amendment, bars bar legislative tinkering.

It could be repealed only by sending it back to voters. And the only way for lawmakers to alter it would be to get a three-fourths vote in both the House and Senate — and only if the measure "furthers the purpose" of the amendment.

What else may have resulted in some support for the initiative is that the question of abortion rights played a role in several other races on the ballot.

Supporters of the presidential bid by Kamala Harris hammered Donald Trump who had bragged that he appointed several of the Supreme Court justices who voted to overturn Roe. And they noted he has made multiple statements about where he stands on the issue, most recently by voting in his home state of Florida to support a six-week ban there.

The issue was even more pronounced in the race for U.S. Senate where Democrat Ruben Gallego and his supporters ran multiple commercials attacking Republican Kari Lake. That includes video of her in 2022, when she ran unsuccessfully for governor, calling abortion the "ultimate sin" and praising the U.S. Supreme Court for its ruling overturning Roe.

Lake, in defensive mode, responded by saying that, if elected, she would not support a national ban and would abide by the decision of Arizona voters on Prop 139.