Arizona Senate Bill 1164 (2022)

Arizona Senate Bill 1164 (2022), or SB 1164, prohibited abortions after fifteen weeks of pregnancy except when necessary to protect the life or health of the mother. The Arizona Senate and the Arizona House of Representatives passed SB 1164, and then-governor Douglas Ducey signed the bill into law on 30 March 2022. The passage of SB 1164 reinforced the state’s ability to regulate abortions following the US Supreme Court decision Dobbs v. Jackson Women’s Health Organization (2022) decision, hereafter Dobbs, which overturned the federal law Roe v. Wade (1973), hereafter Roe. Roe had established abortion as a constitutional and federal right and prohibited states from banning abortions before fetal viability. Roe defined fetal viability as the point when the fetus has a chance of surviving outside the womb without extreme medical help. Dobbs returned the regulatory rights to the states. Arizona’s SB 1164 has helped shape the legal framework concerning reproductive rights in the state by prohibiting abortions after fifteen weeks and replaced Arizona’s previous 1864 law titled Arizona Revised Statutes 13-3603, or ARS 13-3603.

1. Before the Passage of SB 1164
2. Contents of SB 1164
3. Passage of SB 1164
4. Impacts

Before the Passage of SB 1164

In 2022, SB 1164 came as the latest in a string of abortion laws in Arizona dating back to before the region was a state. In 1864, the first Arizona Territorial Legislature enacted the Howell Code, or a compiled list of laws for the territory. The Howell Code included the criminalization of abortion under the section ARS 13-3603. ARS 13-3603 mandated that anyone who used medicine or surgery to abort a child or provided, supplied, or administered an abortion would be punished with imprisonment for no less than two years but no more than five years. The only exception was if the woman's life was in danger. There was no exception for women who had been raped or victims of incest. The law was a part of a larger wave of legislation at the time, when Colorado, Nevada, Idaho, and Montana enacted similar bans on abortion from 1861 to 1864. By 1880, around forty states had an almost complete ban on abortion.

In the prior decade before Arizona became a state in 1912, Arizona expanded its restrictions on abortion. In 1901, Arizona enacted a law that mirrored the Comstock Act (1873). The 1901 law restricted any form of advertising for abortions, including mailed advertising. In 1873, the federal government passed the Comstock Act, which was an anti-obscenity law that restricted the distribution of materials related to abortion, pornography, content deemed indecent or immoral, and birth control. It especially targeted items related to sexual health or any items designed, adapted, or intended for abortions, banning their circulation through the postal service. The 1901 law stated that abortions and contraception fall under obscene material outlined in the Comstock Act.

In 1913, after Arizona officially became a state, Arizona codified most of the Howell Code into its state law, including ARS 13-3603. For about seventy years, Arizona had no changes to its abortion laws. However, in 1973, the US Supreme Court’s decision in Roe stated that abortion was a constitutional right and fundamental right until the time of fetal viability. The decision led Arizona courts to issue an injunction on ARS 13-3603, which prevented it from being enforced. Despite the Roe ruling, the Arizona Legislature recodified the 1864 law in 1977, even though it could not be enforced, to signal the state's political stance and opposition to abortion.

In 2018, Mississippi entered the national debate on abortion rights. The state enacted a law that restricted abortions after fifteen weeks of pregnancy, which set the stage for the legal battle that ultimately led to Dobbs. On 19 March 2018, the Mississippi Legislature enacted statute Miss. Code Ann. § 41-41-191, which aimed to limit non-therapeutic or elective abortions to the first fifteen weeks of pregnancy. The statute only allowed exceptions for medical emergencies or fetal abnormalities. It also included a provision clarifying that it did not intend to legalize any abortion procedures that were otherwise illegal. On 20 November 2018, the US District Court of Mississippi ruled the law unconstitutional based on the precedent set by Roe, which held that viability, not gestational age, was the earliest point that a state can impose restrictions on abortion. In June 2020, Mississippi appealed the Fifth Circuit’s decision to the US Supreme Court. On 17 May 2021, the US Supreme Court agreed to hear the case, which became known as Dobbs v. Jackson Women’s Health Organization. 

Arizona legislators modeled SB 1164 after statute Miss. Code Ann. § 41-41-191, aiming to outlaw abortions after fifteen weeks. 

Contents of SB 1164

SB 1164 is divided into five sections. “Section One” is the definition section, “Section Two” is the construction section, “Section Three” is the legislative intent section, “Section Four” is the right of intervention section, and “Section Five” is the severability section. “Section Three” is split into nine findings that support restricting abortions after fifteen weeks of pregnancy.

“Section One,” or the definition section, first defines how the authors of the bill will use terms such as abortion, human being, and medical emergency. It then outlines Arizona’s regulations on abortions after fifteen weeks of pregnancy, or gestation. Physicians must determine and document the gestational age of the fetus before they perform an abortion, except in cases of medical emergencies. The law only permits abortions after fifteen weeks under emergency circumstances, with physicians required to submit detailed reports to the Arizona Department of Health Services. Physicians who violate those regulations may face penalties, including the suspension or revocation of their medical licenses, civil fines up to $10,000, and potential felony charges. The attorney general has the authority to enforce the statute and pregnant women seeking abortions from physicians who violate “Section One” of SB 1164 are exempt from prosecution.

“Section Two,” or the construction section, states that the act does not establish a right to abortion or change generally accepted medical practices. Also, it does not repeal or affect any existing Arizona laws, including ARS 13-3603, which regulate or restrict abortion.

“Section Three,” or the legislative intent section, presents nine findings to support restricting abortions after fifteen weeks of pregnancy. Those findings are presented as statements of fact, though many of them have been contested in the scientific literature according to Jane Maienschein, who studies the history and philosophy of science at Arizona State University in Tempe, Arizona. 

The first finding is that the US is one of six countries that allows non-therapeutic abortions after twenty weeks, with most nations restricting non-therapeutic abortions to twelve weeks, the only exception being in cases of life-threatening risks to the mother.

The second finding cites studies of prenatal development, which claim that by five to six weeks, the heart begins beating. By eight weeks, the fetus can move. By nine weeks, basic anatomy is present, like teeth, eyes, and external genitalia. By ten weeks, vital organs begin to function and hair, fingernails, and toenails begin to form. By eleven weeks, an unborn fetus’s diaphragm begins to develop, and it begins moving freely in the womb. By twelve weeks, the fetus has taken on the human form and can sense stimulation from the outside world. 

The third finding is that the US Supreme Court has acknowledged a state’s interest in protecting unborn life. In Roe, the US Supreme Court ruled that states have an important and legitimate interest to protect the potentiality of human life. In Planned Parenthood v. Casey (1991), hereafter Casey, the US Supreme Court reaffirmed that states have a legitimate interest in protecting the life of, in the words of the justices, the unborn.

The fourth finding is that most abortions after fifteen weeks involve dilation and evacuation, or D&E. SB 1164 defines those procedures as involving the use of surgical instruments to tear apart what it calls an unborn human being. According to the law, the Arizona Legislature finds the use of those procedures barbaric, dangerous for the mother, and discrediting to medical professionals. 

The fifth, sixth, and seventh findings continue to highlight the lawmakers’ concerns about abortion and bring attention to what they refer to as the state’s interest in women’s physical and mental health. The fifth finding is that most gynecologists who practice in Arizona do not perform non-therapeutic or elective abortions, with even fewer offering D&E. The sixth finding states that Arizona has an interest in protecting women’s health, especially their mental health due to what they see as the lasting consequences of abortion. Casey outlines that there are legitimate state interests in protecting the health of the pregnant women from the beginning of pregnancy. The seventh finding is that abortion poses physical and psychological risks that increase as gestational age increases. SB 1164 states that the physical and psychological risks of abortion increase after eight weeks of pregnancy. The eighth finding is that the health risks of having an abortion are greater than the health risks of carrying out the pregnancy to term for the majority of uncomplicated pregnancies after the second trimester.

The ninth finding relates to the medical complications from dilation and evacuation procedures. Those complications include pelvic infection, incomplete abortions leading to retained tissue, blood clots, heavy bleeding or hemorrhage, laceration, tear or other injury to the cervix, puncture, laceration, tear or other injury to the uterus, injury to the bowel or bladder, depression, anxiety, substance abuse, and other emotional or psychological problems. According to the law, abortions performed after fifteen weeks of pregnancy carry increased risks, such as requiring reparative surgery or blood transfusions. “Section Three” concludes that the Arizona Legislature, through SB 1164, intends to limit non-therapeutic abortions to the period up to fifteen weeks of pregnancy.

“Section Four,” or the right of intervention, states that the legislature has the authority to appoint one or more of its members to intervene as a legal right in any case in which any party challenges the constitutionality or enforceability of SB 1164.

Lastly, “Section Five,” or the severability section, states that if any part of SB 1164 or its application to a person or situation is found to be invalid, it will not impact the other provisions or applications of the act. The state will continue to enforce the rest of the law as long as it can function without the invalid portion. The lawmakers designed the provisions of the law to be independent, or severable, from one another.

Passage of SB 1164

Arizona Senators introduced SB 1164 to the Arizona State Senate on 13 January 2022. On 15 February 2022, the Arizona Senate decided in favor of the law in a majority vote of sixteen to thirteen, with one senator abstaining. On 9 March 2022, the Arizona Senate transmitted SB 1164 to the Arizona House of Representatives. On 24 March 2022, the Arizona House of Representatives ruled in favor of the law in a majority vote of thirty one to twenty six, with three representatives abstaining.

On 30 March 2022, Ducey, signed SB 1164 into law. When Ducey signed SB 1164, it was unenforceable because of the decisions in Roe and Casey, which gave women seeking an abortion the right to terminate a pregnancy up until twenty-four weeks, or the point of fetal viability. However, on 24 June 2022, the US Supreme Court overturned the Roe decision and ended the constitutional right to abortion in its Dobbs ruling. The Dobbs decision returned the authority to regulate abortion back to the states. After the Dobbs decision, there was no clear abortion law in Arizona in the absence of Roe.

In an effort to reinstate ARS 13-3603 in the absence of Roe, then Attorney General of Arizona Mark Brnovich filed a motion to lift a 1973 injunction on ARS 13-3603 on 13 July 2022. The 1973 injunction blocked enforcement of ARS 13-3603 for forty-nine years. The case headed to the Pima County Superior Court, where Pima County Superior Court Judge Kellie Johnson ruled in favor of Brnovich on 23 September 2022. Johnson’s ruling reinforced ARS 13-3603, a near-total ban on abortions. Planned Parenthood Arizona appealed Johnson’s decision, and the Arizona Court of Appeals temporarily blocked enforcement of the ban. Two weeks later, on 7 October 2022, abortions were allowed to resume in Arizona. On 30 December 2022, a three-judge panel from the Arizona Court of Appeals reversed Johnson’s decision and ruled that physicians were safe from prosecution under ARS 13-3603. The panel did not repeal ARS 13-3603 but stated that it should continue for non-physicians while physicians should follow SB 1164.

Throughout 2023 and 2024, executive actions, court rulings, and legislative measures continually reshaped the Arizona's legislative landscape surrounding abortion rights. In June 2023, Katie Hobbs, Governor of Arizona, signed Executive Order 2023-11, which has several provisions to protect reproductive freedom in Arizona. On 9 April 2024, the Supreme Court of Arizona ruled in Planned Parenthood Arizona v. Mayes (2024) that the state could enforce ARS 13-3603. The ruling would take effect forty-five to sixty days after the decision. On 24 April 2024, the Arizona House of Representatives passed HB 2677 to repeal ARS 13-3603. On 2 May 2024, Hobbs signed a bill to repeal ARS 13-3603, which would take ninety days after 15 June 2024 to go into effect on 14 September 2024.

In November 2024, Arizonans voted to pass Proposition 139, which amends the state constitution and outlines the right to abortion services up to fetal viability, or twenty-four weeks of pregnancy. Until Proposition 139 is formally amended in the Arizona Constitution, abortion providers continue to follow SB 1164 and are allowed to provide abortion care for up to fifteen weeks.

Impacts

Initially, SB 1164, which was passed in March of 2022, was unenforceable due to the Roe precedent and was incompatible with ARS 13-3603. However, the Dobbs decision in June 2022 overturned Roe, which gave states the power to regulate abortion. Then, in December 2022, the Arizona Court of Appeals temporarily blocked enforcement of ARS 13-3603. That decision helped shape the abortion landscape in Arizona, with SB 1164 setting the framework for Arizona's post-Dobbs abortion regulations.

After the passage of SB 1164, there was a decrease in abortions in Arizona. In the month following the Dobbs decision, the amount of abortions decreased in Arizona from 1,159 abortions performed in June 2022 to 216 abortions performed in July 2022. In 2022, Arizona physicians performed 11,407 abortions as opposed to the previous decade's average of 13,000 abortions. Following the SB 1164 ruling, abortions beyond fourteen weeks decreased by forty-seven percent from 2021 to 2022.

In 2024, a Kaiser Family Foundation, or KFF, survey found that Arizona women were concerned about abortion access and reproductive rights. In a women’s health survey about women and abortion, the KFF found that around 7 in 10 women believed they or someone close to them would not be able to obtain an abortion if their pregnancy was at risk. The survey found that seventy percent of reproductive age women in Arizona think abortion should be legal in almost all cases, sixty-six percent of Arizonan women support a nationwide right to abortion, and sixty-seven percent of women oppose leaving abortion up to the states.

SB 1164’s legal implications extend beyond Arizona. Its passage aligns with the broader national trend of states restricting abortion following the Dobbs decision. It follows Mississippi's statute Miss. Code Ann. § 41-41-191, which became the basis for Dobbs. The case became a precedent for subsequent abortion legislation in Arizona and impacted the national debate over reproductive rights. 

Sources

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