Arizona’s (Potential) Abortion Referendum, Explained
Looking under the hood at the Arizona Right to Abortion Initiative.
A note to our readers: As a reminder, the columns posted on 1912 strive to be informed opinion and analysis. This is not an AP-style news piece, nor is it a partisan hit piece. The author’s opinions and affiliations may color his commentary, but we hope that, knowing this, readers can come away better-informed about an important issue and make up their own minds.
Today, we are joined by Joe Pitts, a senior columnist for 1912, and the CEO of the Western Tribune. He breaks down the Arizona Right to Abortion Initiative, and argues that it will likely pass.
Abortion rights are likely to be on every Arizona voters’ ballot in November as progressive interest groups align to support the “Arizona Right to Abortion Initiative.”
If it receives one vote above 50% support, it will not only be enshrined into law, but grafted onto the state’s constitution, which is incredibly difficult to amend. This raises the stakes immensely for both its proponents and opponents.
Seeing that ostensibly conservative and Republican states have either embraced fairly expansive pro-abortion initiatives or refrained from further touching the issue (with some notable exceptions), it is easy to predict that Arizona — a state known for its libertarian impulses and 33-33-33 political makeup — will follow the same path. But advocates for and against this measure would be the first to tell you that people should vote no matter if you think an election is settled or not; because at the end of the day, it will only be settled by voters.
It’s worth taking some time to assess the current landscape, and digest the language of what could become law.
Where we are now
Currently, abortion is illegal in the state of Arizona after 15 weeks of gestation, with exceptions for “medical emergencies.” The definition of such an emergency gives substantial leeway to doctors, enabling them to determine in “good faith clinical judgment” when a pregnancy, if it is not terminated, would result in either the death of the mother or “create serious risk of substantial and irreversible impairment of a major bodily function.”
In the case that an illegal abortion is performed, the doctor who performed the procedure is guilty of a class 6 felony. This is the least severe class of felony under Arizona law, carrying with it a punishment of, at maximum (in the case the offender has committed two or more prior felonies), 5.75 years behind bars. At minimum, the offender will be put on probation, never receiving an iota of prison time. The offending physician’s license to practice will also be either suspended or revoked.
Moreover, the law does not hold women who receive an illegal abortion responsible under law for the crime, nor for “conspiracy to commit any violation of this article.”
While polling on this subject is incredibly difficult to do well, the average voter is in favor of abortion through the first trimester (up to 12 weeks), with some exceptions beyond that point. 55% oppose abortion in the second trimester, and 70% in the third. As the current Arizona law is written, it seems to align pretty damn well with contemporary public opinion, if not stretch beyond it.
What the initiative does
Considering the current law — which, it should be noted, is remarkably more liberal than the territorial law which bans abortion from conception onwards except if it is performed to save the mother’s life — lies somewhere near the mean of public opinion, it is worthwhile to ask what the Arizona Right to Abortion Initiative would actually change. A lot.
First, the initiative would establish a “fundamental right to abortion” for every Arizona woman. Rather than making abortion illegal to perform after a certain date, it legalizes abortion up until “fetal viability,” which is defined as “when, in the good faith of judgment of a treating health care professional and based on the particular facts of a case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.”
Realistically, this point is somewhere between 23-25 weeks into a pregnancy — oftentimes less than 12 weeks before a baby is born. That limit pushes right up into the third trimester.
The initiative also carves out an exception to a woman’s right to abortion if there is a “compelling state interest that is achieved by the least restrictive means.” This standard is known as “strict scrutiny,” and it holds that any law contradicting a recognized constitutional right (in this case, the “fundamental right to abortion”) is invalid by default — the law must be proved to meet the standard of strict scrutiny before going into effect.
Moreover, the initiative raises the bar even beyond that: A “compelling state interest” must both be put into effect with the purpose of improving the health of a woman requesting an abortion, and not infringe upon her “autonomous decision making.”
The initiative is best understood, then, not as establishing any restrictions on abortion, but as making legal abortion the norm, and carving out narrow (almost impossible to find in reality) exceptions — exceptions far beyond the norm of median public opinion.
Importantly, it is manifestly unclear how a doctor would even be prosecuted — let alone sentenced — if they performed an abortion that contradicted this amendment. Prosecutors would not be antsy to prosecute any doctor for abortion at any stage in a pregnancy, not only because they would have unclear legal grounds for pursuing charges, but also because the extremely high bar that must be met under strict scrutiny would be basically impossible to meet.
While this proposal lies far outside the average voter’s beliefs on legal abortion, there’s a good chance this initiative passes. Here’s why.
This is the choice voters will be faced with at the polls come November: Voting in favor of a pro-abortion initiative, or voting against it. Simple as that. They will not perceive that they are choosing between the 15-week law and a far more expansive measure. They are voting for a pro-abortion measure or against a pro-abortion measure. And, on the whole, most Americans favor legal abortion in some cases. This dynamic is among the most compelling reasons to think that, barring some major shift, Arizonans will pass the new initiative into law.
Now, if there were a competing initiative which, let’s say, enshrined the 15-week ban into the constitution, then supporters could campaign for it as the sensible, middle-of-the-road alternative to a radical proposal. But no such counterproposal exists, at least this election cycle. For most voters, there will be no perceived alternative.
What happens next?
The American pro-life movement was built for fifty years upon the foundation of overturning Roe v. Wade and Planned Parenthood v. Casey, two Supreme Court rulings which affirmed a federal right to abortion as an extension of citizens’ right to privacy (previously established under Griswold v. Maryland).
In all likelihood, this was the strategically correct posture: Without Roe in the dust bin, there is no hope of reining in legal abortion anywhere in the United States. But this also meant that the moment Roe fell, the movement had to readjust course. It needed to begin making the argument to voters — most of whom are at least modestly pro-legal abortion — that abortion is not only morally wrong, but should be illegal to perform. And these fights will be fought in the trenches of state and local electoral politics, mostly outside the onus of federal judges and the Supreme Court.
Now, we can hardly blame a movement so expansive and grassroots-oriented for not adjusting course overnight. This discoordination, however, has left many Republicans, conservative Democrats, and independent voters uneasy — and rightly so.
If Ohio, hardly a progressive bastion, will affirm expansive abortion laws with a decisive majority, what hope does the pro-life movement have? History, of course, shows us that things can change quickly. A basic acquaintance with the political history of Abraham Lincoln or Richard Nixon should assure you of that. But such change might require a change in pace — and a change in focus — for pro-life advocates (at least on the political front).
The future of the movement’s political action will probably benefit from support and guidance from the Beltway commentariat and national organizations. But the decisive choices, victories, and losses that will come to define its trajectory will be settled in states, and mostly at the ballot box.
It seems that, for the time being, the pro-life movement may do well to content itself with a simple metric for success: Reducing the number of abortions in the United States. Uncomfortable compromises may need to be brokered in states that aren’t ruby red: Sincere social conservatives who believe that abortion is murder from conception onwards may well need to back 12 and 15-week abortion bans in many of these places, if the alternative is a nearly unlimited constitutional right to abortion. Incrementalism will be painful, but it may be the only path forward.
As the pro-life movement looks to the future, they are looking to states. And November 2024 looks grim. But just beyond the horizon exists a trajectory for success for pro-life advocates, if only they are able to coalesce and redirect their efforts. The time for national judicial politicking has passed. The era of good, old-fashioned political persuasion may soon be upon us. And we’ll be better off for it.
Joe Pitts is a senior columnist at 1912. He serves as the Chairman of the Board and CEO for the Western Tribune, a 501(c)(3) nonprofit news media company. He founded the company in 2021 alongside Clay Robinson.