Abortion Bans in Arizona and Florida Will Face Voters in November
The state supreme courts in Florida and Arizona both recently ruled that strict abortion bans could go into effect. But ballot measures may give voters a chance to weigh in
By Liz Szabo
Pro-abortion rights demonstrators rally in Scottsdale, Arizona on April 15, 2024. The top court in Arizona on April 9, 2024 ruled a 160-year-old near total ban on abortion is enforceable, thrusting the issue to the top of the agenda in a key US presidential election swing state.
Frederic J. Brown/AFP via Getty Images
Court decisions in Florida and Arizona this month have dramatically changed the landscape of abortion access in the U.S., limiting access to reproductive health care to pregnant people across the South and Southwest.
In Florida the state supreme court ruled on April 1 that the state constitution’s privacy protections do not guarantee the right to an abortion, allowing a six-week abortion ban to take effect. The law, which was passed last year and becomes effective May 1, includes exceptions for rape and incest and for saving the life of the pregnant person. In a separate decision also on April 1, the state supreme court allowed a constitutional amendment protecting abortion rights to be included on the November ballot.
The Arizona state supreme court revived an 1864 law banning all abortions except those performed to save a pregnant person’s life. The law was passed before Arizona became a state (when it was still a territory) and before women could vote, at a time when both abortion and childbirth carried a significant risk of death. Arizona’s abortion ban won’t take effect until at least June 8, according to the state attorney general.
Doctors who violate the Arizona or Florida abortion bans could face up to five years in jail, says Mary Ziegler, a professor at the University of California, Davis, School of Law who studies the history of abortion.
Planned Parenthood of Arizona called the state’s abortion ruling “devastating” in a statement and said that it will continue providing abortions through 15 weeks of pregnancy “for a short period of time.”
Arizona doctors, who are already operating under many legal restrictions related to abortion, are often hesitant to treat dangerous pregnancy complications, says physician Gabrielle Goodrick, owner and medical director of Camelback Family Planning, which provides abortion and other reproductive health services, in Phoenix, Ariz. Goodrick says some doctors are even reluctant to treat ectopic pregnancy, a serious condition in which an embryo implants outside the uterus; it can lead to major internal bleeding and death if not treated. Except in extremely rare cases, ectopic pregnancies cannot result in a live birth, and all ectopic pregnancies are life-threatening. Yet Goodrick says her clinic recently saw a woman who had an ectopic pregnancy and required surgery to end the pregnancy but was sent home from a hospital twice without treatment.
Many hospital doctors are afraid to do anything that may endanger a pregnancy unless a pregnant person is about to die, she says. “If there’s a [fetal] heartbeat, they are hesitant to act if not 100 percent sure the pregnancy is hopeless,” Goodrick says. “These things are real things that are happening now,” she says, before abortion bans have even taken effect. Goodrick says her clinic will provide abortion care as long as it can do so legally, in addition to medical services that pregnant people may not be able to access elsewhere.
Arizona governor Katie Hobbs has issued an executive order giving the state’s attorney general Kris Mayes—not local prosecutors—authority over prosecuting abortion cases. Mayes has said she’s looking for ways to protect abortion providers, including not prosecuting them.
Yet such assurance may not be enough for physicians to risk jail time, says Paul Isaacson, an obstetrician-gynecologist and co-owner of Family Planning Associates Medical Group in Phoenix. Although he appreciates Hobbs’s support, he says his clinic’s legal team is reviewing whether the governor has the authority to take away abortion cases from local prosecutors. If the 1864 takes effect, “it would require each individual abortion provider to do their own risk assessment” about whether to continue providing abortions, Isaacson says.
Traveling Long Distances for Care
Both Arizona and Florida previously allowed abortion through 15 weeks of pregnancy. Banning abortions after six weeks will reduce access to care not only for Floridians but for pregnant people in southern states with more restrictive laws, as well as the Caribbean and Latin America, says Aubrey Jewett, an associate professor and assistant director of the School of Politics, Security and International Affairs at the University of Central Florida.
In the first six months of last year, 13 percent of people undergoing abortions in Florida were from out of state, compared with 5 percent in a similar period in 2020, according to the Guttmacher Institute. Nationally, the proportion of pregnant people traveling out of state for an abortion doubled between 2020 and 2023, with one in five people who sought the procedure crossing state lines last year.
For Floridians who need in-person abortion care after six weeks of pregnancy, the closest state they can receive it in is North Carolina, which permits abortion through 12 weeks and six days of pregnancy.
For pregnant people in Arizona, the closest states with abortion access are California, Nevada, Utah, New Mexico and Colorado. (A trigger law banned most abortions in Utah in June 2022, but it is currently being challenged in the court system and has not gone into effect.) Abortion is not a federal crime in Mexico, although some states—including Sonora, which borders Arizona—ban or restrict the procedure.
Reproductive health clinics in Colorado have already seen a large increase in pregnant people coming from Oklahoma, Texas and other states where abortion is banned or heavily restricted, according to the Guttmacher Institute. The percentage of abortions in Colorado performed on out-of-state residents more than doubled in three years, increasing from 13 percent in 2020 to 31 percent in the first half of 2023. The overall number of abortions in Colorado grew by 6,200 a year in that time, with half the increase coming from residents of other states.
With so many people traveling to Colorado for abortion care, wait times have grown dramatically, even for Colorado residents, says Shane Reeves, a maternal-fetal medicine specialist who practices near Denver. Before the U.S. Supreme Court struck down the constitutional right to abortion in 2022, pregnant people typically waited a couple of days for an appointment with Reeves or his colleagues. Now pregnant people often wait three weeks.
While legal abortion is a safe procedure, the risks and costs increase as a pregnancy progresses because more specialized care is required, Reeves says.
While an abortion costs about $500 in Colorado before 11 weeks, the cost goes up to $2,200 at 17 weeks and more than $12,000 at 22 weeks because of the additional cost of an operating room. Many people can’t afford such procedures, in addition to the expense of traveling and taking time off from work, Reeves says.
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Voters Could Weigh In
Voters could have the final say in Florida, Arizona and at least nine other states where abortion could be on the ballot in November. Florida has already allowed a ballot initiative, and reproductive rights advocates in Arizona say they have gathered enough signatures to put a measure protecting access to abortion on the ballot, although those signatures have not yet been certified.
“What we’re hoping is that ultimately the voters will address this issue in November,” Isaacson says.
Polls show that Americans overwhelmingly want abortion to be legal in at least some cases; only 10 percent say it should be illegal in every circumstance, according to a 2023 poll from the Associated Press–NORC Center for Public Affairs Research.
Seven states—California, Kansas, Kentucky, Michigan, Montana, Ohio and Vermont—have allowed voters to weigh in on abortion in previous elections since June 2022. In every case, voters have supported abortion rights. Not all states permit voters to directly weigh in on issues such as abortion; only 26 states and Washington, D.C., allow ballot initiatives.
Abortion has been a winning issue for Democrats even when it has not been on the ballot. Arizona governor Hobbs, for example, won election in 2022 after campaigning on a promise to protect abortion rights. In the wake of the Arizona Supreme Court’s decision, some Republicans in the state are now moderating their stance on abortion.
Although Democratic lawmakers in Arizona introduced bills last week to repeal the 1864 law, Republicans, who control both houses of the legislature, blocked their efforts.
Court battles could still shape access to abortion in the state. The Arizona Supreme Court gave abortion rights advocates two weeks to challenge its ruling in court, says David S. Cohen, a professor at Drexel University’s Thomas R. Kline School of Law. So it’s possible that groups such as Planned Parenthood could file an appeal. If so, a judge could decide to temporarily block the 1864 law from taking effect while that appeal is pending, he adds.
“This isn’t over,” Cohen says. “Far from it.”
Ziegler notes that state measures to safeguard abortion rights could be overridden if Donald Trump wins reelection, however. Ziegler says many antiabortion groups are eager to resurrect the Comstock Act, an 1873 law that conservatives argue makes it a federal crime to mail “any drug, medicine, article or thing designed, adapted, or intended for producing abortion.”
Antiabortion activists claim the Comstock Act makes it illegal to mail abortion pills and have filed suit against the Food and Drug Administration. The Supreme Court is considering the case and is expected to issue a decision in June.
Because virtually all medical supplies used to terminate pregnancies are delivered through the mail or services such as FedEx and UPS, the Comstock Act could possibly be interpreted as criminalizing any abortion, not just those involving medication sent directly to pregnant people, Ziegler says.
Cohen predicts it would likely take more than Trump being reelected for the antiabortion interpretation of Comstock Act to become the law of the land. Any person or entity mailing abortion-producing items who was convicted under the Comstock Act could appeal that conviction to higher courts, possibly even to the Supreme Court, Cohen says.
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