How upcoming Supreme Court abortion ruling could change Arizona’s legal landscape
Thursday, May 19, 2016
PHOENIX – Elizabeth Savino worked as a nurse practitioner at Grace Clinic for two years, serving mostly low-income women at the family planning clinic.
Savino now works in family practice, but she keeps an eye on new laws she says could limit abortion access and affect women’s health-care providers. She’s worried.
“I think that more and more, everybody’s hands are being tied by various legislators who, in my opinion, have no business making decisions in women’s health or how a health practitioner practices,” Savino said.
The status of abortion access and legislation that affects patients and healthcare providers may change dramatically in June, when the U.S. Supreme Court is expected to decide a Texas case that could echo across the country. The court will hear Whole Woman’s Health v. Hellerstedt, which challenges two restrictions that abortion rights advocates say place an “undue burden” on women seeking an abortion.
The Texas restrictions would require abortion clinics to meet the standards of outpatient surgical centers and require doctors who perform abortions to have admitting privileges at a nearby hospital. Anti-abortion advocates say the measures protect women’s health, while abortion rights advocates say the Texas law fits a pattern of legislation to limit abortions. Arizona and more than 20 other states have passed a number of abortion laws that could be affected by a Supreme Court decision.
History of abortion laws in Arizona
The contested law in Texas is among several proposals bundled in a bill passed by the state’s Legislature in July 2013. While the two provisions have been stayed pending the court’s decision, the rest have become law. They join a large patchwork of abortion laws passed across the country over the past few years.
Arizona was an early adopter of abortion laws. The first bill in Arizona was proposed and passed in 1999, but a court case kept it from going into effect until a 2010 settlement.
“We practically invented those (laws) here in Arizona,” said Jodi Liggett, the vice president for public affairs at Planned Parenthood Arizona.
The shift in tolerance for abortion laws was sparked by political changes. Democrat Janet Napolitano’s departure from the governor’s office and Republican Jan Brewer’s induction as her replacement in January 2009 set the stage for the 2010 elections. An already anti-abortion Legislature no longer faced a veto from the governor’s desk, and the conservative faction grew even larger following a generally Republican-triumphant midterm election.
“I really hate the analogy of the ‘perfect storm,’ but it was,” said Elizabeth Nash, senior state issues associate for the Guttmacher Institute, a reproductive health research organization that supports abortion rights.
The conservative lobbying group Center for Arizona Policy has supported 42 abortion laws since 1999, the majority of which were proposed in 2009 or later, according to their website. Five bills were proposed this legislative session alone, and three were signed into law on March 31.
“Since 2009, 2010, we have had pro-life governors and pro-life legislators who are willing to pass common-sense regulations on abortion,” said Cathi Herrod, president of the policy center.“Before that, it was much more difficult to pass anything because of the extreme pro-abortion position taken by our prior governor.”
The year 2010 held similar changes for other states across the country. Of the 435 voting seats in the House of Representatives up for election, Republicans won a majority with 242 seats. Meanwhile, 37 states held gubernatorial elections, and Republican candidates, including Brewer, won 29 of them.
“The country has become pro-life,” Herrod said. “The political climate in Arizona reflects that.”
At the same time as the political turnover, conservative policy organizations were reinvesting efforts at the state level after seeing negligible returns working at the federal level. Elected officials and policy leaders formed a fruitful partnership that was often modeled in other states.
“You had some investment at the state level by the conservative organizations, and then you had legislatures with a similar mindset come to power, and when the two met, you started to see abortion restrictions fly through legislatures,” Nash said.
Protect women’s health or restrict access?
The Texas case before the Supreme Court has two provisions that abortion providers are challenging. One requires abortion clinics to meet the same standards as ambulatory surgical centers, including staffers, equipment and facility design, such as the width of hallways. The admitting privilege would require abortion providers to maintain a relationship with a nearby hospital.
Such laws share the same core idea but vary state-to-state. Arizona’s admitting privilege law is less restrictive than the one in Texas. Abortion providers in Arizona can contract with a physician who has admitting privileges with a nearby hospital, serving essentially as a proxy.
Arizona has other laws abortion-rights advocates consider limiting access to abortions, including a 24-hour mandatory waiting period and a requirement that medical doctors administer every step of the procedure. Last year it passed a law – stayed pending legal action – that a medically induced abortion, using a pill, can be reversed. Medical doctors dispute a reversal is possible.
Anti-abortion advocates and policy makers such as Herrod said abortion laws are passed to protect women’s health.
“Most of the laws that we advocate for in Arizona put forth basic health and safety regulations, health and safety requirements, that would be followed in any other medical field,” Herrod said.
What happens when clinics close and providers go away
Since parts of the Texas law went into effect, the number of abortion providers in the state has dropped from more than 40 to about 20. If the two challenged provisions are upheld, the number could drop again, down to 10 for the entire state, according to the Guttmacher Institute.
In 2011, there were 1,270 abortion providers across the United States, according to Guttmacher Institute research. Seventeen of those were located in Arizona, down from 19 in 2008.
Historically, Planned Parenthood Arizona had clinics across the state. But facilities in lower-population areas such as Prescott and Yuma have been closed. Planned Parenthood now has 11 clinics – eight in Phoenix, two in Tucson and one in Flagstaff.
“We’ve been regulated out of existence in some areas,” Liggett said.
The limited number of clinics is the norm in Arizona and nationwide: in 2011, 67 percent of Arizona counties had no abortion provider, and 89 percent of counties in the United States also had none, according to Guttmacher research. Low-income women, minorities and those living in rural areas are the most affected by limiting access to abortions, according to providers.
“And if in particular you think about Yuma and the entire western half of the state, it’s sparsely populated–but there are women there,” Liggett said. “There are women all over Northern Arizona on reservations.”
Herrod said that abortion laws and other legislation the Center for Arizona Policy supports do not limit access or pose a threat to abortion providers.
“None of these regulations will stop any women from getting an abortion,” Herrod said. “The regulations before the Supreme Court will not outlaw abortion in the state of Texas or any other state.”
The Whole Woman’s Health v. Hellerstedt case hinges upon the debate over whether there is an “undue burden” to receive an abortion.The Supreme Court will largely be exploring its last major abortion ruling, Planned Parenthood v. Casey, which first established the concept of “undue burden” in 1992.
Nash said the standard has never been “clear cut.”
“I think they would be wrestling with the issue of what does it mean to create an undue burden, what is the standard, and how do you know when that line has been crossed,” Nash said.
What’s happening now, what happens after the Supreme Court ruling
The Supreme Court’s ruling will reverberate beyond Texas. A ruling in favor of the legislation would set a legal precedent that supports abortion access across the country. If the court rules in favor of Texas’ abortion clinics, legal standing for abortion laws will be removed. The upcoming decision has the attention of those on both sides of the abortion debate.
“How the Supreme Court rules could well affect abortion regulations in every state in the country,” Herrod said. “So everyone is concerned what the Supreme Court may do.”
The Supreme Court case was complicated by Justice Antonin Scalia’s death in February. Another, alternate ending entered the field: a 4-4 tie, which would affirm the lower court’s ruling without setting a precedent for other laws nationwide.
A New York Times story on March 2 described the court as “splintered” during hearings for the case, making a tie seem a likely option.
While awaiting word on the court’s decision, abortion foes and supporters are battling in Arizona. The Center for Arizona Policy is involved in lawsuits about four abortion laws, according to their website.
If the court rules in favor of the law’s challengers, Liggett said Planned Parenthood and other abortion rights groups, such as the Center for Reproductive Health, would begin litigation against similar abortion laws “in a heartbeat.”
“We would want to roll back every single one of them because they are not based in medicine, and they are not based in health, safety or quality of care,” Liggett said.
For now, all those on both sides of the abortion divide can do is wait.
Infographic sources: Guttmacher Institute, Planned Parenthood, The New York Times