principal pre-Roe statutes prohibited abortion on a
pregnant woman unless the procedure was “necessary to save
her life,” and
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). Pursuant
to Roe, the statutes were declared unconstitutional
by the Arizona Court of Appeals. Their
enforcement was not enjoined. Although the pre-Roe statutes
have not been expressly repealed, they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). It
is also possible that the statutes have been repealed by implication
with the enactment of substantial post-Roe legislation
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
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.
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.
See Ariz. Rev. Stat. Ann. §§ 13-3603, 13-3604
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.
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.