Abortion Rights in Arizona

Following last week’s SCOTUS decision on abortion, the federal precedent set by Roe v. Wade has been invalidated and abortion is now a states-rights issue. Earlier this year, Doug Ducey signed SB 1164, which would create what’s known as a 15-week abortion ban, and we’ll jump into that shortly. However, yesterday Attorney General Mark Brnovich tweeted that a 1901 territorial law banning all abortions outright is currently in effect. Here’s what you need to know about abortion in Arizona as it currently stands:

The current law, 36-2151, states that the “use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child” is strictly legally prohibited. This law does not cover contraception as a means of abortion, legally separating pregnancy prevention from pregnancy termination.

According to Brnovich, however, the Supreme Court decision allows Arizona to trigger into place the pre-existing standard for abortion in the state - a law written in 1901, 11 years before Arizona was officially part of the union. The 1901 territorial law bans abortion outright, except in cases which will save the mother’s life. Obviously, written in 1901, no exact parameters for what constitutes “life saving” are given, but the penalty for performing an abortion is listed at “no less than two years and no more than five years.”

However, earlier this year, Ducey signed SB 1164, a much more specific bill than the 1901 document. SB 1164 states that abortions can legally occur if the pregnancy “complicates the medical condition of a pregnant woman” in order to “avert her death.” It is widely expected that the wording of SB 1164 will be the wording of abortion law in Arizona going forward after it takes effect at the end of this current legislative session.

Under SB 1164, Arizona would operate under a 15-week abortion ban. Up until the 15th week of pregnancy, abortion would still be a viable, legal option. Additionally, abortion would still be legal in cases where a fetus is no longer alive, is ectopic, or results in any immediately life-threatening emergency for the expectant mother. The options listed here would be the only exceptions for an abortion throughout the state. Additionally, SB 1164 would turn performing an abortion into a Class 6 Felony charge, which carries the threat of fines, probation, or jail time of up to 1.5 years.

The abortion landscape in Arizona is going to change radically. There are serious doubts that Brnovich’s plan to use the 1901 law will hold up in court against Ducey’s SB 1164, but the fact remains that getting an abortion in Arizona is about to become a lot more difficult and the penalties for performing one are about to become more severe. As it stands, all current abortion providers in the state have put an indefinite hold on performing the procedure while the legal dust settles. If you have any questions about your abortion rights, please contact us here at Palestini Law, and we’ll be more than happy to walk you through them.


Originally from Toronto, Canada, James Palestini relocated to Arizona where he received his Bachelor of Science in Criminal Justice Studies with a minor in Criminology from Arizona State University. James then attended law school at Phoenix School of Law where he earned a Juris Doctorate degree. While pursuing his doctorate, James interned at a criminal defense firm in Scottsdale, Arizona. James handled a multitude of criminal cases there, including felony, misdemeanor and criminal traffic matters.