Arizona Reproductive Rights: An Update

By: Marki Stewart and Karen Owens, Coppersmith Brockelman PLC

  1. Proposition 139: Abortion Rights Now Are Part of the Arizona Constitution

On November 5, 2024, Arizona’s voters passed Proposition 139, an initiative that enshrines the right to abortion in the Arizona Constitution.  The initiative largely parallels the abortion right as set forth in Roe v. Wade, the 1973 U.S. Supreme Court case which the Court overruled in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).   Arizona voters approved the initiative by large numbers, with “yes” votes constituting 61.61% of the vote, compared to a 38.39% “no” vote.  https://ballotpedia.org/Arizona_Proposition_139,_Right_to_Abortion_Initiative_(2024)

The text of Proposition 139, now Article 2, Section 8.1 of the Arizona Constitution, is quite short.  The entirety of the provision is as follows:

  1. Every individual has a fundamental right to abortion, and the state shall not enact, adopt or enforce any law, regulation, policy or practice that does any of the following:
  2. Denies, restricts or interferes with that right before fetal viability unless justified by a compelling state interest that is achieved by the least restrictive means.
  3. Denies, restricts or interferes with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual.
  4. Penalizes any individual or entity for aiding or assisting a pregnant individual in exercising the individual’s right to abortion as provided in this section.
  5. For the purposes of this section:
  6. “Compelling state interest” means a law, regulation, policy or practice that meets both of the following:
  7. Is enacted or adopted for the limited purpose of improving or maintaining the health of an individual seeking abortion care, consistent with accepted clinical standards of practice and evidence-based medicine.
  8. Does not infringe on that individual’s autonomous decision making.
  9. “Fetal viability” means the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.
  10. “State” means this state, any agency of this state or any political subdivision of this state.
  11. Reuss v. State of Arizona

Proposition 139 became effective on Nov. 25, 2024, and the Arizona Constitution has now been amended to include its terms.  But the proposition itself did not automatically delete prior laws limiting abortion rights.  With that in mind, on December 3, 2024, health care providers filed a lawsuit challenging A.R.S. §§ 36-2321 through -2326, provisions that contain the ban on abortion after 15 weeks of pregnancy, on grounds that the 15-week limitation violated the new Constitutional amendment.  Reuss v. State of Arizona, No. CV2024-000565 (Maricopa County Superior Court, March 2025).

Plaintiffs filed a Motion for Judgment on the Pleadings.  The State agreed that the trial court could resolve the case on the pleadings and asked the court to enter the declaratory and injunctive relief that Plaintiffs sought.  On March 5, 2025, the Maricopa County Superior Court entered an Order granting Plaintiffs’ Motion for Judgment on the Pleadings.   A stipulation for dismissal of the case was filed soon thereafter.  Because the parties agreed to enter judgment on the pleadings, there will be no appeal.  The Reuss trial court decision is therefore the final word on the enforceability of A.R.S. Sections 36-2321 through 2326.

  • What did Reuss remove from law?

The Reuss case effectively deleted several specific provisions from Arizona law. These are:

  • A.R.S. § 36-2321: Definitions for abortion; medical emergency; gestational age; major bodily function.  (But note that some of these terms are defined elsewhere in Title 36.)
  • A.R.S. § 36-2322:
    • Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.
    • Requires reporting to the Arizona Department of Health Services (“ADHS”)  for every abortion performed after 15 weeks.
  • A.R.S. § 36-2323: Required ADHS to create the reporting forms.
  • A.R.S. § 36-2324:
    • Any physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B is guilty of a class 6 felony.
    • A pregnant woman on whom an abortion is performed may not be prosecuted for conspiracy to commit any violation of this article.
  • A.R.S. § 36-2325:
    • A physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B commits an act of unprofessional conduct and the physician’s license to practice medicine in this state shall be suspended or revoked.
    • Imposed civil penalties for failure to comply with ADHS reporting requirements or for providing false information on a report to ADHS.
    • A.R.S. § 36-2326: Authorized the Arizona Attorney General to bring an action to enforce this article.
  • What abortion laws were unaffected by Reuss?

The Reuss litigation did not affect all of Arizona’s abortion laws, however.  Important statutes regulating the provision of abortion remain in place, although the constitutionality of at least some of these provisions is in doubt under Proposition 139.  The following statutory provisions remain in law:

  • A.R.S. § 36-2159: Prohibits abortion after 20 weeks gestation except in a medical emergency; violation is a class 1 misdemeanor and an act of unprofessional conduct; creates civil cause of action for the pregnant person, father, and maternal grandparents.
  • A.R.S. § 36-2152: Requires parental informed consent or judicial bypass for minors seeking abortion services.
  • A.R.S. § 36-2323: Requires ADHS to create reporting forms.
  • A.R.S. § 36-2324:
    • Any physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B is guilty of a class 6 felony. 
    • A pregnant woman on whom an abortion is performed may not be prosecuted for conspiracy to commit any violation of this article.
    • Note that Reuss specifically addressed and deleted A.R.S. § 36-2322.
  • A.R.S. § 36-2325:
    • A physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B commits an act of unprofessional conduct and the physician’s license to practice medicine in this state shall be suspended or revoked. 
      • Imposes civil penalties for failure to comply with ADHS reporting requirements or for providing false information on a report to ADHS. 
    • Note that Reuss specifically addressed and deleted A.R.S. § 36-2322.
  • A.R.S. § 36-2326: Authorizes the Arizona Attorney General to bring an action to enforce this article.
  • A.R.S. § 36-2156: Requires a fetal ultrasound 24 hours before the abortion services; creating a civil cause of action for the pregnant person, the father of the fetus, and maternal grandparents for violation of this section. 
  • A.R.S. § 36-2153: Establishes informed consent requirements at least 24 hours before the abortion services; only physicians (MDs and DOs) may provide abortions.
  • A.R.S. § 36-2160: Abortion-inducing drugs may only be provided by a physician; prohibits providing abortion-inducing drugs via courier, delivery, or mail service. Notably, the Trump Administration has now asked a federal trial court to dismiss a case challenging Biden Administration rules that broadened federal abortion medication access.  https://www.nytimes.com/2025/05/05/health/trump-abortion-pill-case.html This federal position, however, does not by itself render Arizona’s state restrictions ineffective.
  • A.R.S. § 36-3604: Prohibits the use of telehealth to provide an abortion. 
  • Various statutes related to ADHS abortion reporting requirements (including reporting requirements for informed consent, fetus born alive, complications, etc.).
  • ARS § 13-3603.02: Makes it a felony to perform an abortion for race or sex selection or because of a genetic abnormality except in an emergency.
  • Possible Future Challenges

Although we do not yet know what additional abortion-related statutes may be challenged successfully under the new Constitutional amendment, further challenges to the remaining Arizona abortion laws appear likely.  Generally, it is reasonable to expect arguments that various statutes interfere with the fundamental right to an abortion and are not justified by a compelling state interest.

For example, the restriction on providing abortion after 20 weeks unless there is a medical emergency (in A.R.S. § 36-2159) appears to directly contradict the new Article 2, Section 8.1(A)(2) of the Arizona Constitution.  That language prohibits the state from taking any action which: “[d]enies, restricts or interferes with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual.”  We may see arguments that 20 weeks gestation is not the same as “fetal viability” as defined in the new Constitutional provision.  In addition, it may be argued that the 20-week ban’s exception for “medical emergency” is not the same as the Arizona Constitution’s standard stating that an abortion after fetal viability must be necessary to protect the life or physical or mental health of the pregnant individual.

Similarly, arguments may be made that the ultrasound requirement (A.R.S. § 36-2156) and 24-hour waiting period (A.R.S. § 36-2153) interfere with the fundamental right to abortion now in the Arizona Constitution and lack the justification of a compelling state interest.   Waiting periods may be characterized as a significant burden particularly for patients who live in rural areas and need to travel for these appointments.

We also may see constitutional challenges leveled at, among other provisions, the prohibition on the use of telehealth for abortion services (A.R.S. § 36-3604), the state limitations on the delivery of abortion medications (A.R.S. § 36-2160), the prohibition of abortions performed by mid-level providers (A.R.S. § 36-2153), and informed consent provisions (A.R.S. § 36-2153).

Suffice to say that further challenges to Arizona abortion laws in light of Arizona’s new Constitutional amendment may take place. It is difficult to predict how the courts will come down on each of these provisions and others.  At a minimum, we should expect that abortion law in Arizona will be in flux for the foreseeable future.