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Arizona The principal pre-Roe statutes prohibited abortion on a pregnant woman unless the procedure was “necessary to save her life,”1 and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).2 Pursuant to Roe, the statutes were declared unconstitutional by the Arizona Court of Appeals.3 Their enforcement was not enjoined. Although the pre-Roe statutes have not been expressly repealed,4 they may not be enforceable, even if Roe v. Wade were overruled, because of a state supreme court decision striking down restrictions on public funding of therapeutic abortions on state constitutional grounds (privileges and immunities).5 It is also possible that the statutes have been repealed by implication with the enactment of substantial post-Roe legislation regulating abortion.6
1 Ariz. Rev. Stat. Ann. § 13-211 (1956), renumbered as § 13-3603 by 1977 Ariz. Sess. Laws ch. 142, § 99. See Ariz. Rev. Stat. Ann. § 13-3603 (West 1989). 2 Ariz. Rev. Stat. Ann. § 13-212 (1956), renumbered as § 13-3604 by 1977 Ariz. Sess. Laws ch. 142, § 99. See Ariz. Rev. Stat. Ann. § 13-3604 (West 1989). No prosecutions were reported under this statute. 3 See Nelson v. Planned Parenthood Center of Tucson, 505 P.2d 580, 590 (Ariz. Ct. App. 1973) (on rehearing); State v. Wahlrab, 509 P.2d 245 (Ariz. Ct. App. 1973). In its original opinion in Nelson, decided less than three weeks before Roe v. Wade, the Arizona Court of Appeals upheld the statutes. 4 See Ariz. Rev. Stat. Ann. §§ 13-3603, 13-3604 (West 2001). 5 See Simat Corp. v. Arizona Health Care Cost Containment System, 56 P.3d 28 (Ariz. 2002). The supreme court expressly refrained from deciding whether art. 2, § 8, of the Arizona Constitution confers a right to abortion independent of the one recognized on federal constitutional grounds in Roe v. Wade. Id. at 34. 6 Apart from the pre-Roe statutes, it is unlikely that Arizona’s post-viability statute, see Ariz. Rev. Stat. Ann. § 36-2301.1 (West 2003), would effectively prohibit post-viability abortions because it allows such abortions to be performed to preserve the pregnant woman’s life or health, health not being defined in the statute. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered). There would be few, if any, abortions that could not be justified on psychological or emotional grounds. |
May be reprinted without permission but with attribution to the Life Legal Defense Fund.