On November 5, 2024, the voters approved Proposition 139, which establishes a fundamental right to abortion under the Arizona Constitution. The constitutional amendment took effect on November 25, 2024. Accordingly, Arizonans now have a constitutional right to access abortion care.
Under the new constitutional provision, Arizonans can access abortion care prior to fetal viability. After fetal viability, Arizonans can access abortion care when necessary to preserve the life or physical or mental health of the mother based on the good-faith judgment of a treating health care professional.
The Arizona Constitution defines “fetal viability” as “the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.”
The new constitutional provision also prevents the government from penalizing any person or group who helps a pregnant person access lawful abortion care.
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If you’re seeking reproductive healthcare and wondering what’s legal in Arizona, you’re not alone. The law can be confusing and change quickly.
Arizonans should understand three key points.
Understand the abortion rights in the Arizona Constitution.
Proposition 139 added a new provision to the Arizona Constitution (Article 2, § 8.1). The full text of the measure can be found here.
That provision declares that “every individual has a fundamental right to abortion” and limits the government’s ability to interfere with that right depending on whether the abortion is sought before or after fetal viability.
The Constitution defines “fetal viability” as “the point in pregnancy when … there is a significant likelihood of the fetus’s sustained survival outside of the uterus without the application of extraordinary medical measures.” That determination is left to the good faith judgment of the treating health care professional, based on the particular circumstances of the case.
Before fetal viability, the government cannot interfere with the right to abortion unless it has a compelling state interest and does so in the least restrictive way possible. After fetal viability, the government cannot interfere with the good-faith judgment of a treating health care professional that an abortion is necessary to protect the life or health of the mother.
- Finally, the provision provides that the
- government cannot penalize any person or group for aiding or assisting another person in exercising the right to an abortion.
So, what does this mean in practice?
- Doctors can perform abortions prior to fetal viability.
- After fetal viability, access to abortion care is available when necessary to preserve the life or physical or mental health of the mother based on the good-faith judgment of a treating health care professional.
- Whether a pregnancy is viable is left to the good-faith judgment of the treating health care professional, based on the particular facts of the situation.
- You are entitled to autonomy in making decisions about whether and when to have an abortion.
- If you elect to have an abortion, it can be performed surgically or with medication.
- It is legal to use the medication abortion drug mifepristone in Arizona.
Understand that the law is in flux and might change.
Arizona has many existing statutes on the books that restrict or regulate abortion care. Some of these statutes—like laws generally prohibiting pre-viability abortions—clearly conflict with the new constitutional right to abortion access and are no longer enforceable.
With other statutes, it is less clear whether they will continue to be enforceable in light of the new constitutional right to abortion. The Legislature may repeal some of these statutes, or lawsuits may be brought to have them declared unconstitutional. In the meantime, however, they remain on the books.
Examples of statutes that are currently on the books and regulate abortions include:
- In-person notices. At least twenty-four hours before the abortion, a medical provider (as specified under the statute) must tell the patient certain information in person. A.R.S. § 36-2153. Some, but not all, of the information the provider is legally required to tell the patient includes:
- “The probable anatomical and physiological characteristics” of the fetus when the abortion is scheduled to be performed.
- “The nature of the proposed procedure or treatment.”
- “The immediate and long-term medical risks associated with the procedure that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.”
- The medical risks of continuing with the pregnancy.
- And that the biological father of the fetus “is liable to assist in the support of the child, even if he has offered to pay for the abortion.”
- Ultrasound. At least twenty-four hours before the abortion, the patient must undergo an ultrasound and be offered the opportunity to view the active ultrasound image and hear an explanation of what the ultrasound shows. A.R.S. § 36-2156.
- Physician-only requirement. Only licensed physicians can perform surgical abortions. A.R.S. §§ 36-2153, 36-2155, 32-2531.
- Medication abortion restrictions. Medication abortion may be provided only by a qualified physician. And it cannot be provided through a courier, delivery or mail service. A.R.S. § 36-2160.
- Parental consent requirements. A physician cannot perform an abortion for a minor without either (1) the written and notarized consent of one of the minor’s parents or the minor’s guardian, or (2) authorization from a judge on the Arizona Superior Court (through a process called “judicial bypass”). A.R.S. § 36-2152.
- Licensure and reporting requirements. Abortion providers and clinics are subject to a number of requirements, including that providers must have admitting privileges, and they must record and report certain information about the abortions they perform. A.R.S. §§ 36-449.02, 36-449.03, 36-2161, 36-2162.
- Importantly, although the hospital or facility that performed the abortion is required to report certain information, the hospital or facility is legally prohibited from identifying the patient’s name or any other information that would make it possible to identify the patient who sought or obtained an abortion.
Disclaimers
This website is not intended to be legal advice and creates no attorney-client relationship between readers and the Attorney General’s Office. This website is not an exhaustive explanation of all abortion-related information and does not provide medical advice. Patients should always consult with licensed medical providers to answer their questions. The law is in flux and may change; this website will be updated as reasonably appropriate to reflect relevant developments in the law.