Group starts effort for ballot measure to make abortion a constitutional right in Arizona

Ray Stern
Arizona Republic

Arizonans could get the chance to make abortion legal in the state this year, even if the U.S. Supreme Court reverses Roe v. Wade.

But a new effort to put a constitutional amendment on the November ballot has to clear significant hurdles. Backers will first need to submit 356,467 valid voter signatures by July 7.

It's a tight deadline and if that step is successful — and if the measure survives likely legal challenges — a majority of voters would have to approve it. It would take effect immediately.

A coalition of health care professionals, activists and advocates behind the effort, calling themselves Arizonans for Reproductive Freedom, submitted an application for the measure at the state Secretary of State's Office on Monday.

Dr. Matt Heinz, a former Arizona lawmaker and current Pima County supervisor who's working on the initiative, said he has "tremendous faith" in the group's ability to meet its signature goals, despite the short time frame.

"The volunteer effort will be Herculean and intense," he said. "Plus, there will be funds for dedicated paid signature gathering from experienced Arizona firms. ... This is very doable."

The proposed constitutional amendment would create a new right for Arizonans to make decisions about abortion, contraception, prenatal care, childbirth, infertility care and related services.

"Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy," the proposed amendment begins.

The amendment would take power away from the government to "restrict, penalize, frustrate or otherwise interfere" with any of those rights, including "pre-viability" abortions, or interfere with nonmedical reproductive services.

Abortions would still be limited by the viability of the fetus, as they are now, but with no set time frame as a firm rule. Viability would be defined by a "good faith medical judgment" of a licensed health care professional that a fetus would survive, with or without artificial support, the initiative states.

Dr. Victoria Fewell, a Banner Health obstetrician-gynecologist in Tucson, serves as the group's chairperson. She didn't return a phone message Tuesday.

What could happen if Roe is undone

The move to enshrine reproductive rights in the Arizona Constitution comes after the release earlier this month of a draft Supreme Court opinion on an abortion case written by Justice Samuel Alito. It suggests a majority of justices are preparing to overturn Roe v. Wade and let states decide how to handle abortion rights.

Arizona has a territorial-era abortion ban that mandates two to five years in prison for abortion providers. Experts and some state leaders say it's possible a reversal of Roe v. Wade would mean a return to the complete ban. Gov. Doug Ducey has disagreed, and previously said a new law limiting abortions to within 15 weeks would take precedence.

The constitutional amendment, if successful, seeks to supersede those laws. Shasta McManus, the group's treasurer, said the ballot measure would bring national attention to Arizona and make the state a leader on the issue that others could follow in the event of a Roe v. Wade reversal.

McManus said they don't yet have funding for the signature-gathering effort, but expects to have support from state and national donors.

What the initiative would do

While some initiatives comprise many pages of provisions, this one is just four paragraphs. Craig Morgan, a Phoenix attorney working with the group, said the main idea behind the proposal is to make sure the state doesn't "wholesale prohibit" abortions, but it won't necessarily erase every abortion restriction in law today.

Conservative lawmakers in Arizona have tried for decades to constrain the 1973 landmark court decision, which allows all abortions up to the first trimester and for states to set limited rules for second-trimester abortions. 

Arizona has codified numerous restrictions for abortion services, like requiring minors to obtain parental consent before an abortion and mandating that women must obtain an ultrasound and wait 24 hours before an abortion, among others.

In the case of minors and consent, since the proposed amendment states "every individual" would have the right to act on their decisions, that seemingly could include women of any age who are pregnant. 

Morgan couldn't say with certainty how it would affects minors. If voters passed the measure, each of Arizona's abortion restrictions would have to pass constitutional scrutiny if challenged. Judges would weigh the state's existing laws against the measure, and provisions that lose out "would be things that were probably unconstitutional anyway," he said.

Before Roe v. Wade: What would a ban on abortion in Arizona look like?

Any changes to the amendment itself, if it passes, would require a three-fourths majority vote in the Legislature because of the 1998 Voter Protection Act, and changes would have to further the purpose of the law and not restrict it.

Getting on the ballot could run into another obstacle: finding enough paid signature gatherers. A separate initiative on voting rights hired FieldWorks, a Washington, D.C.-based signature gathering firm, which in turn hired so many petition gatherers that a competing voting-related initiative couldn't find enough for its effort.

Cathi Herrod, president of the anti-abortion Center for Arizona Policy, which has backed abortion restrictions passed by the Arizona Legislature, vowed to fight the initiative.

"The proposed language is very broad and vague," she said. "Should the proponents get the signatures, we will be ready to oppose."

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.