PHOENIX — Gov. Doug Ducey wants the U.S. Supreme Court to overturn its historic decision in Roe v. Wade and leave the question of whether to allow abortion in Arizona to state lawmakers and to him.
Ducey, a Republican who opposes abortion, is among 12 governors who filed a brief Thursday with the nation’s high court in support of a Mississippi law that bans terminating a pregnancy after the 15th week. Enforcement of that law has been blocked by the 5th Circuit Court of Appeals.
The new filing goes beyond arguments by Mississippi that its aw is a permissible regulation of abortion because it does not ban the procedure outright.
Ducey and his fellow governors want the justices to revisit and overturn the original 1973 decision and subsequent rulings that say the government has no authority to decide for a woman about whether to terminate a pregnancy before a fetus is viable. That, in turn, would leave the issue to the legislatures and governors in each of the states.
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Potentially more significant, it might not even require a public debate or vote in Arizona on abortion rights.
That’s because Arizona legislators never repealed many of the laws that predate Roe v. Wade, meaning they remain on the books, albeit currently unenforceable. That leaves the question of whether those laws would automatically take effect again if Roe is overturned.
“The Constitution preserves the rights of the states by specifically enumerating the authority granted to the federal government,’’ Ducey said in a prepared statement explaining his decision to seek to overturn Roe. “Unfortunately, almost 50 years ago, the U.S. Supreme Court decided to ignore the Constitution and created policy which has led to the over-politicization of this issue for decades.’’
“Every single life has immeasurable value,’’ Ducey said. “That includes children who are preborn. And I believe it’s each state’s responsibility to protect them.’’
State Rep. Athena Salman, D-Tempe, called Ducey’s legal efforts “patronizing, sexist and extreme.’’
“Here we have yet another man who will never become pregnant, who will never be faced with a choice of whether or not they need to get an abortion, abusing the position of his elected office to deny this fundamental piece of health care to the millions upon millions of people who will need it at some point in their lives,’’ Salman said, citing figures from a research institute that supports abortion rights that one in four women will terminate a pregnancy.
She said this is a fundamental — and national — constitutional right, not something that should be decided on a state-by-state basis.
“It is fundamentally wrong for your zip code to determine whether or not you can have access to a safe, regulated form of health care and abortion,’’ Salman said.
Whitney Walker, a vice president of Planned Parenthood Arizona, questioned why Ducey is getting involved in the issue.
“Instead of focusing on the rising COVID-19 case numbers or educating the public to get vaccinated, Gov. Ducey is concerned with denying access to essential health care to the state’s residents, all in the middle of a global pandemic,’’ she said in a prepared statement. “Ducey needs to stop playing politics and start doing what is right for Arizona.’’
In blocking the Mississippi law, the 5th Circuit said Roe held that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The judges said that was reaffirmed in a 1992 case, saying “the state’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.’’
Ducey and the other governors want the current crop of Supreme Court justices to conclude that these decisions were an illegal infringement on state sovereignty. That, they said, would let the states “serve as laboratories of democracy for establishing and implementing suitable abortion regulations based on the latest scientific knowledge.’’
However, Ducey, in his six years as governor, has never said he wants some sort of examination of when abortions should be legal.
Instead, he has signed every bill restricting abortion that has reached his desk.
A panel of appointees hand-picked by the governor blocked state employees from making payroll deductions to Planned Parenthood yet allowed donations to Alliance Defending Freedom, an anti-abortion public interest law firm that has gone to court to defend legislation to restrict abortion rights.
In their legal brief, the governors said: “Once voters cast their ballots, it is up to a state legislature to decide how the state will regulation abortion.
“And if voters do not like what a legislature does, then they have democracy’s ultimate check: the ballot box,’’ they continued. “There is nothing wrong with giving this issue back to the people.’’
That also would shift the debate stage. “No longer would the issue dominate presidential campaigns,’’ the governors said. Instead, the focus would shift to the state level which they said “better allows those differing voices to be heard and to shape policy.’’
For the most part, the makeup of the Arizona Legislature has tilted toward adopting more and more restrictions in a bid to get around — if not directly challenge — Roe v. Wade.
For example, a 2012 law, signed by Ducey’s GOP predecessor Jan Brewer, sought to ban abortions at 20 weeks. A federal appeals court struck it down as conflicting with Roe and the constitutional right of women to terminate a fetus that is not yet viable outside the womb.
This year, the Legislature approved and Ducey signed a measure to make it a crime to abort a fetus because of a fetal genetic defect, despite claims by foes that interferes with the rights of women to make decisions before the point of viability. Set to take effect in September, that Arizona law will also:
Allow the husband of a woman who seeks such an abortion, or the woman’s parents if she is younger than 18, to sue on behalf of the unborn child.
Outlaw the ability of women to get otherwise-legal drugs to perform a medical abortion through the mail or other delivery services.
Declare that the laws of Arizona must be interpreted to give an unborn child the same rights, privileges and immunities available to anyone else.
Planned Parenthood said no decision has been made whether to challenge it in court as violating the rights set forth in Roe and the subsequent court rulings.