Arizona Proposition 139 is a proposed constitutional amendment that will appear on the ballot on November 5, 2024. If passed, the amendment would establish a right to abortion in the Constitution of Arizona up until fetal viability.[1] A simple majority is needed for this proposition to pass.
In the 19th century, bans by state legislatures on abortion were about protecting the life of the mother given the number of deaths caused by abortions; state governments saw themselves as looking out for the lives of their citizens.[2] Arizona's first ban on abortion was passed in 1864.[3] It read:
“[E]very person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years: Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.”[3]
This total abortion ban was invalidated in 1973 by Roe v. Wade, which recognized a constitutional right to abortion up to fetal viability. A trigger law, drafted to go into effect if Roe were overturned, was passed by the Arizona Legislature in 2022 banning abortion after the 15th week of pregnancy. Later that same year, the Supreme Court of the United States ruled in Dobbs v. Jackson Women's Health Organization that Roe had been wrongly decided. This in turn led to confusion over which of the two Arizona abortion laws should go into effect: then-Governor Doug Ducey backed the 15-week ban, while then-Attorney General Mark Brnovich held that the older total ban should be operative.
In November of 2022, Katie Hobbs and Kris Mayes, both supporters of abortion rights, were elected as Governor and Attorney General of Arizona, respectively; their election was seen as part of the so-called Dobbs effect backlash against the ruling. The next month, a state appeals court ruling found that the 2022 law should take precedence, allowing abortions up to 15 weeks to be performed in Arizona.[4] In July 2023, Hobbs issued an executive order stripping local prosecutors of their ability to file prosecutions over the 15-week ban or (if it were revived in court) the 1864 ban, and assigning that power to Mayes, who in turn stated that she had no intention of ever filing such prosecutions.[5][6]
On April 9, 2024, the Republican-controlled Arizona Supreme Court ruled in Planned Parenthood Arizona v. Mayes that the 1864 law could be enforced.[7] However, on May 1, in the face of further backlash, the Arizona Legislature repealed the 1864 law, leaving the 15-week ban in place.[8] Legal maneuvering ensured that the legislature's repeal of the 1864 law would go into effect before the Supreme Court's removal of the injunction against it.[9] Proposition 139, if passed, would invalidate the 15-week ban, restoring the legal situation before the repeal of Roe.
Content
The official ballot title is as follows:
PROPOSITION 139 PROPOSED BY INITIATIVE PETITION RELATING TO THE FUNDAMENTAL RIGHT TO AN ABORTION.
Official Title
AMENDING ARTICLE II, CONSTITUTION OF ARIZONA, BY ADDING SECTION 8.1; RELATING TO THE FUNDAMENTAL RIGHT TO AN ABORTION.
Descriptive Title
CREATES A FUNDAMENTAL RIGHT TO ABORTION. LIMITS THE STATE’S ABILITY TO INTERFERE WITH THAT RIGHT BEFORE FETAL VIABILITY. AFTER FETAL VIABILITY, ABORTIONS ARE ALLOWED WHEN NECESSARY TO PROTECT THE LIFE OR HEALTH OF THE PREGNANT INDIVIDUAL. PROHIBITS LAWS PENALIZING A PERSON FOR ASSISTING AN INDIVIDUAL OBTAINING AN ABORTION.[1]
If approved, the ballot measure would add the following text to Article 2, Section 8.1 to the Arizona Constitution:[10]
8.1. Fundamental right to abortion; definitions
A. 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:
1. 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.
2. 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.
3. 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.
B. For the purposes of this section:
1. “Compelling state interest” means a law, regulation, policy or practice that meets both of the following:
(a) 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.
(b) Does not infringe on that individual’s autonomous decision making.
2. “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.
3. “State” means this state, any agency of this state or any political subdivision of this state.
Endorsements
Yes
U.S. Senators
Jacky Rosen, U.S. senator from Nevada (2019–present) (Democrat)[11]
Statewide Officials
Katie Hobbs, 24th Governor of Arizona (2023–present)(Democrat)[12]
