BY Shulamit Shvartsman for Lawyers.comsm
While abortion has been legal in the United States since 1973, it remains one of the most controversial issues in society, politics, and law.
What Is Abortion?
An abortion is an "induced miscarriage" of an embryo or fetus during a woman's pregnancy. The right to privacy in the US Constitution includes a woman's right to have abortions without interference from the state. However, there are limits to this right.
States have interests that can compete with one another and the rights of women. Some of these are protecting the woman's health and protecting the fetus that could have become a child. States can set standards and limitations on abortions as long as they don't place an undue burden on the woman.
Arizona's New Bills
In Arizona, two new laws impacting abortion, House Bill 2564 and Senate Bill 1175, were scheduled to go into effect in the fall of 2009.
What Do the New Arizona Bills Require?
Among other things, the bills created the following new requirements for women seeking to terminate their pregnancy:
- A 24-hour waiting period
- That only doctors will be allowed to perform the procedure
- Pharmacists and other health-care professionals will be able to refuse to provide contraception and participate in the procedure
- Minor children seeking abortions must provide notarized consent of their parents
The Lawsuits That Followed
Supporters of abortion rights filed lawsuits in both state and federal court requesting that the judges block Arizona's new laws because they would restrict abortion access. Attorneys for Planned Parenthood and the New York-based Center for Reproductive Rights asked the judges to prevent enactment of the laws until it can be determined they are constitutional.
Arizona's Abortion Challenges
Arizona's current law allows nurse practitioners to perform abortions. These nurses perform more than half of all abortions at some Planned Parenthood locations. The groups argue that a law requiring that only doctors perform an abortion would limit access to abortions. The suit alleges this violates the Arizona Constitution's pledge not to disturb a person's "private affairs."
The groups also challenge the requirement to see a doctor 24 hours before an abortion in order to receive information on risks and alternatives. This provision requires women make two trips to get an abortion, even though the same information can be provided over the phone or electronically. Another claim is that this violates women's privacy rights by placing an undue burden on those women who can't get time off from work or arrange child care. This may result in denying them access to the abortion.
Supporters of the New Laws
Supporters of the new laws argue these new provisions provide protection for women, parents of minors, and medical professionals who object to abortion and contraception on moral grounds. "Finally, Arizona is taking care of the needs of women facing the abortion decision, as well as parents and health-care professionals," said Cathi Herrod, president of the Center for Arizona Policy, which lobbied for the legislation.1
Arizona's Right to Privacy
Article II, Section 8 of the Arizona Constitution establishes the right to privacy. However, the Arizona Supreme Court has never ruled on whether it extends to abortion rights.
As decided by the US Supreme Court in 1992 in the case Planned Parenthood vs. Casey, 24-hour waiting periods are not unconstitutional. However, lawyers for the Center for Reproductive Rights say Arizona's requirement that women visit a physician in person twice goes further than the law in the Casey case and therefore it's unconstitutional. "Here we have very strong evidence that this law will seriously impact a woman's ability to access abortion," said Suzanne Novak, a lawyer for the center. "It will prevent some women from getting an abortion at all."2
The State Decision
On September 29, 2009, one day before the law was to take effect, a state court judge in Arizona heard arguments in this case and struck down some provisions while allowing others. He ruled that:
- The 24 hour waiting period will take effect, but women won't need to see a doctor in person for advance disclosures. The consultation can be done over the phone and by non-doctor staff members
- Nurse practitioners will be allowed to continue performing abortions
- The requirement for notarized parental consent forms for minors was struck down, since notaries would first be required to accept confidentiality procedures
- The ability to opt out of abortions and contraceptives won't be extended to all health-care workers, only to doctors
The remaining portions of the new laws would take effect. This means that Arizona now has a 24 hour waiting period requirement and requires advance disclosures to women before an abortion.
While both sides seemed to get some of their requests, the abortion issue is far from settled.
Casey Newton, 2 Groups Sue to Block Arizona Abortion Laws, The Arizona Republic, Sept. 15, 2009, available at http://www.azcentral.com/news/election/azelections/articles/2009/09/14/20090914abortionlaw-ON.html, accessed Oct. 16, 2009.2
Questions for Your Attorney
- If I think the law in my state complicated my plans for a medical procedure, such as abortion, and I ended up going to another state, do I have any sort of legal case? If time didn't allow me to seek a legal solution, can I go back after the fact and sue?
- There's certainly controversy connected to medical procedures such as abortion, or contraceptive services, treatments and medications. Is it legal for the politics surrounding a medical procedure to impact what is offered in an insurance policy, especially with employer-provided coverage?
- I'm a health care worker - am I protected from negative action by my employer if I refuse to participate in medical procedures or actions that go against my personal beliefs? Does the law specifically have to provide me with such protection?