On November 5, 2024, Arizona voters passed Proposition 139, enshrining a fundamental right to abortion in the Arizona Constitution. [1] Previously, as reported in our blog post “Bypass: The Future of Abortion Access for One of the Most Vulnerable Populations,” [2] the Supreme Court’s ruling in Dobbs overruled Roe’s right to abortion, which called the enforceability of Arizona’s judicial bypass statutes into question. If the Dobbs ruling meant that judicial bypasses were no longer available, this would make it nearly impossible for pregnant minors in Arizona to obtain abortions without the consent of their parent or legal guardian. Now that Prop 139 has passed, and Arizonans have a constitutional right to abortion, what does this mean for judicial bypass? 

This post will review judicial bypass and analyze Arizona’s new right to abortion. 

Understanding Judicial Bypass 

To understand judicial bypass, let’s first consider a hypothetical example. 

Sarah is a 17-year-old student living in Phoenix. She earns top grades, works part-time, and plans to attend college out of state. Recently, Sarah discovered she is pregnant. She does not want to continue the pregnancy, but she is afraid her parents will not support her decision and that they might kick her out of their home if they find out she wants an abortion. 

Legally speaking, does Sarah have the option to get an abortion without her parents’ permission?  Yes.  

A.R.S. § 36-2152 requires unemancipated minors to obtain written, notarized consent from a parent, guardian, or conservator before an abortion. [3] However, there is an exception called a judicial bypass. Through this process, a minor like Sarah can petition the superior court to allow her to make the decision to terminate her pregnancy without parental consent.  

The key steps and requirements are as follows: 

• Confidential Petition: The minor files a confidential petition with the superior court in her county or where the abortion will take place. [4] 

• Court Hearing: The court must schedule a confidential hearing within 48 hours of receiving the petition, excluding weekends and holidays. 

• Guardian Ad Litem: The court must also appoint a guardian ad litem to advise the court on the minor’s best interests. The minor is entitled to free legal counsel appointed on their behalf. 

• Legal Standards: To grant the bypass, the judge must find either (a) that the minor is mature enough to give informed consent and (b) that an abortion is in her best interests. If the court does not find the minor is mature, they can still grant the ability to make the decision if it is in the minor’s best interests and the court must specify why it is best. 

• Burden: The minor must prove by a high burden – clear and convincing evidence – that they are sufficiently mature and capable of giving informed consent. 

• Decision Timeline: The court must issue a decision within two business days after the hearing. If denied, the minor can appeal, and appellate courts have 48 hours to issue their ruling, excluding weekends and holidays. 

• Other Exceptions: Parental consent or court authorization is not required if the pregnancy resulted from certain criminal acts (such as by an incestuous relationship) or if a medical emergency exists that threatens the life of the minor. 

While judicial bypass provides a legal path for minors, that does not mean the path is easy. The process is fast but stressful, requiring minors to present personal information and argue their case in court. Many initiate the process without legal representation, and the formality of court can be intimidating—especially for those in rural areas with less access to legal assistance. [5] Time pressures and the need to prove maturity or best interests add to the burden. Ultimately, while the law allows for judicial bypass, it does not eliminate all obstacles for minors seeking confidential reproductive care. 

Prop 139 and Arizona’s Constitutional Right to Abortion 

The passage of Proposition 139 in November 2024 fundamentally altered Arizona’s approach to abortion rights by creating section 8.1 in Article 2 of the Arizona Constitution. Article 2 section 8.1 establishes abortion as a fundamental right under the Arizona Constitution. [6] The provision operates through three key prohibitions on state action that practitioners must understand when analyzing abortion regulations.  

Before fetal viability, the state may only restrict abortion access when justified by a compelling state interest achieved through the least restrictive means. However, section 8.1(B)(1) significantly narrows what constitutes a compelling interest. The restriction must be “for the limited purpose of improving or maintaining the health of an individual seeking abortion care” using “accepted clinical standards of practice and evidence-based medicine.” Crucially, any restriction cannot “infringe on that individual’s autonomous decision making.” 

After fetal viability, which is generally understood to be between 22 and 24 weeks of pregnancy, restrictions are permitted only when abortion is “necessary to protect the life or physical or mental health of the pregnant individual” based on “good faith judgment of a treating health care professional.” This standard removes post-viability determinations from legislative control and places them within medical judgment. Section 8.1(A)(3) prohibits penalizing anyone “aiding or assisting a pregnant individual” in exercising abortion rights.  

This framework prioritizes individual autonomy and medical judgment while creating high barriers for state interference. 

Conclusion 

In conclusion, although Section 8.1 and the judicial bypass process support individual autonomy and informed consent, they do not eliminate all barriers to abortion access for mature minors in Arizona. Because the amendment is still new, there is little case law to clarify exactly how Section 8.1 will affect Arizona law or how it will affect the judicial bypass process.  

What is important, as the court’s address section 8.1., is that minors are aware of the judicial bypass process and their rights regarding the same. As the abortion rights of minors are inextricably tied to abortion rights of adults, it is imperative that a minor’s access to abortion without parental consent is taken into consideration.  

Sources: 

[1] Arizona voters approve amendment enshrining abortion rights in state constitution 

[2] Bypass: The Future of Abortion Access for One of the Most Vulnerable Populations – woodnicklaw.com 

[3] A.R.S. § 36-2152 

[4] AOCJVMA1I-052214.docx 

[5] If When How is an excellent resource available to assist minors in need If/When/How: Lawyers for Reproductive Justice 

[6] Ariz. Const. art. II, § 8.1 

Author: 

Ryan T. McGuire is a law clerk at Woodnick Law PLLC and a second-year student at the Sandra Day O’Connor College of Law. He leverages his master’s degree in philosophy to produce thorough legal research and writing, with a focus on family law matters. Ryan brings a strong foundation in legal analysis and academic interests spanning family, criminal, and business law.