By Isabel Ranney

With the leak of Supreme Court Justice Alito’s majority opinion draft on May 2^nd, 2022, persons across the United States are questioning what, if any, abortion rights they will have once the full opinion is released [1]. As a purple state with a Republican majority in the state House, Senate, and Governor’s Office, abortion rights are tenuous, at best, in Arizona.

In the years following Roe v. Wade and the advent of the viability line and “undue burden” test in Planned Parenthood v. Casey, many states have passed legislation aimed at limiting abortion access to every extent possible. If the Supreme Court overturns Roe and Casey, as it appears to be aimed at doing, states will be endowed with essentially unlimited power to rewrite their abortion laws and prohibit abortion altogether. As the leaked draft by Alito states, by overruling Roe and Casey, “we return the power to weigh those arguments to the people and their elected representatives.” Arizona will inevitably be one of the states reconsidering their abortion law and with the Governor’s seat up for grabs, this coming election season is bound to riddled with varying stances on abortion access.

As the law stands now in Arizona, abortions are prohibited after fifteen (15) weeks, with no exceptions for victims of rape or incest [2]. After fifteen (15) weeks, an abortion can only be performed in the event of a medical emergency. This directly contradicts the viability line standard set forth in Casey, which held that pre-viability (approximately less than twenty-four (24) weeks), a woman has an unfettered right to an abortion [3]. The Arizona law has not been challenged as it was enacted in late March of 2022, but it largely mimics the Mississippi law at issue in Dodds v. Jackson Women’s Health Organization—the case pending before the Supreme Court to which Justice Alito’s draft majority opinion pertains.

In addition to the 15 week prohibition, which will likely be upheld if the Court overturns Roe, Arizona recently tied its abortion law to the holdings of the Supreme Court in S.B. 1457, which was signed into law by Governor Ducey on April 27, 2021. It states, in pertinent part, that “the laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.” A.R.S. § 1-219 (2021) (emphasis added). Meaning, the laws of Arizona pertaining to “unborn children” are only to be limited by Supreme Court interpretations. This opens the door for Arizona to not only walk back its 15 week ban, but also to eliminate abortion access entirely if the Supreme Court overturns Roe and Casey.

If Justice Alito’s leaked draft, which has been authenticated, is indicative of anything, it is that Roe and Casey are about to be overturned, leaving half the population without a constitutional right to an abortion. For Arizona, it is up to the State if they want to enact a full out ban on abortion, which appears likely, or if they will wait to see how the recent 15 week ban will affect abortion statistics. Either way, the Supreme Court appears to have spoken, and we will have to wait and see how Arizona (and all states across the nation) respond.

I am writing this as I begin my big “3L summer” at Woodnick Law, a firm that has taught me immensely about the world of family and criminal law but that also gives me the freedom to pursue what I am most passionate about. Yesterday, as I finished my second year of law school, I was made aware of the leak of Justice Alito’s opinion and the world felt like it was imploding around me. So today, when my boss, Gregg Woodnick, told me that part of the agenda this summer was for me to write and learn more about what was important to me, I knew exactly what I wanted to say. I am forever grateful for opportunities like this – to convey my legal analysis on something that is so monumentally distressing to me. I have hope that clerks like myself, and the clerk/staff member at the Supreme Court that leaked this draft, will continue to voice opposition to legislation and judicial holdings that seek to strip away our fundamental rights.

[1] https://www.npr.org/live-updates/supreme-court-abortion-05-03-2022

[2] https://www.azcentral.com/story/opinion/op-ed/ej-montini/2022/03/24/arizona-lawmakers-pass-anti-abortion-pro-rape-incest-bill/7157053001/; see also S.B. 1164 (2022).

[3] Planned Parenthood v. Casey, 505 U.S. 833 (1992) (it is common misconception for people to only reference Roe v. Wade when discussing abortion rights. Much of the framework set forth in Roe was overturned in Casey and replaced with a viability line and undue burden test, although Roe is the seminal case for holding that a woman has a right to an abortion during the early stages of her pregnancy. However, it is important to note that much of the current abortion debate surrounds the holding of Casey and the balancing test set forth in Whole Woman’s Health v. Jackson).

Isabel Ranney is a third year law clerk at Woodnick Law and Associate Editor for the Law Journal for Social Justice.