Both times, the Republican majority refused to permit a vote on repealing the 1864 statute.
The 2022 statute was passed before the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade decision, which held a woman had a constitutional right to an abortion until the third trimester of her pregnancy, which would be 24 weeks. Although the Arizona justices who voted in favor of restoring the 1864 law claimed their opinions did not reflect their personal views on abortion, the two dissenting justices offered an alternative argument that the majority could have adopted to avoid a complete ban on abortion at any stage of a woman’s pregnancy.
Both the 1864 statute and the 2022 statute criminalize conduct by the person performing the abortion, not the woman electing to terminate her pregnancy, meaning it is the physician who would be arrested and charged for violating the statute. Both statutes include exceptions for an abortion procedure that is necessary to save the pregnant woman’s life. The 2022 statute goes further by permitting an immediate abortion if a delay would create serious risk of substantial and irreversible impairment of a major bodily function.
The Arizona House of Representatives has met twice since the Arizona Supreme Court decision was issued. Both times, the Republican majority refused to permit a vote on repealing the 1864 statute. Representatives Selina Bliss and Quang Nguyen, who represent Legislative District 1, which includes the Quad Cities, have publicly stated they support the 1864 ban and are unlikely to vote to repeal this statute.
As an attorney who has represented health care providers for over 25 years, I know the chilling effect this total abortion ban will have on physicians and other providers who treat pregnant women. These professionals, who care deeply about their patients, will not want to risk their license or their freedom.
In the Pro Publica report Their States Banned Abortion. Doctors Now Say They Can’t Give Women Potentially Life-Saving Care, Kavitha Surana provided an in-depth look at how physicians are navigating the rules governing abortion care in a post-Roe environment. One physician who was interviewed noted how “abortion bans had warped doctors’ decision-making and forced them to violate the ethics of their profession, which require acting in the best interests of their patients.” As Surana notes, “there is a wide spectrum of health risks patients can face during pregnancy, and even those that are potentially fatal could fall outside of the exceptions, depending on how the law is interpreted and enforced. Without clarification from legislators and prosecutors on how to handle the real-life nuances that have emerged in hospitals across America, doctors in abortion ban states say they are unable to provide care to high-risk pregnant patients that meets medical standards.”
If the 1864 law is not quickly repealed, physicians, nurses and other healthcare providers will be too afraid to treat a pregnant woman if such treatment requires the termination of her pregnancy, even in cases where the mother’s life is at stake and the pregnancy is not viable. This means pregnant women will have to travel outside Arizona to obtain life-saving health care. Pregnant women and their families will suffer. So will physicians and other healthcare providers. QCBN
By Marcia B. Smith
Marcia B. Smith, Esq. is an experienced healthcare attorney and a Democratic candidate for the Arizona House in Legislative District 1. For more information on her campaign, please visit CleanSlateAZLD1.com.
