Abortion restrictions: Arizona lawmakers push for criminal penalties for women and providers | Arizona Capitol Times

Key points

• Arizona lawmakers advance three abortion restrictions, including criminal penalties for women who get “partial-birth abortions”

• HB 2074 requires health care providers to contact prosecutors, with a year in state prison for failure to comply

• Arizona lawmakers pass bill that would make it a felony for doctors to ship abortion-inducing drugs to patients

State lawmakers advanced three abortion restrictions Wednesday, including one declaring that women who get a “partial-birth abortion” should be subject to the same criminal penalties as the health care providers who carry it out.

House Bill 2074, given preliminary approval on a voice vote, is designed to expand on existing laws that make it a crime to perform the procedure. It is defined in Arizona law as what happens when a fetus is partially outside the body and is “deliberately and intentionally killed.”

Rep. Lisa Fink, R-Glendale, said HB 2074 requires anyone who works at a facility where a procedure is performed to contact prosecutors. Those who fail to do so could face a year in state prison.

What that does, she said, is ensure the state “can verify compliance with existing law.”

The Republican said this is no different from other statutes that require some people to report other medical events, such as surgical complications and certain infectious diseases.

But House Minority Leader Oscar De Los Santos, D-Laveen, pointed out there’s something else in the measure: a “legislative intent” clause.

“The Legislature rejects the notion that a woman should be exempt from all civil or criminal liability in a partial-birth abortion,” the bill reads. Fink’s language also says that while there should be compassion for women “in crisis,” there needs to be a legal framework to recognize that a partially delivered child is deliberately killed.

“Allowing such acts without accountability devalues the life of the unborn child and undermines the very foundation of equal protection under the law,” it reads.

That alarmed De Los Santos.

“That means that this Republican legislature believes that women should be civilly and criminally punished for seeking life-saving health care,” he said. “That is wrong.”

Strictly speaking, the language in that “intent clause” does not enact new penalties. That can only be done through a measure that amends existing statutes.

But De Los Santos said that doesn’t make it meaningless.

“It telegraphs exactly what this bill is about: criminalizing women for getting abortions,” he said. More to the point, De Los Santos said just having that language adopted can have an effect.

“Courts routinely look to intent language when interpreting statutes, which is why Republicans put it in there in the first place,” he said.

The measure needs a roll-call vote before going to the Senate.

Fink’s bill was just one of three abortion-related measures that advanced Wednesday in the House.

Rep. Rachel Keshel, R-Tempe, separately got the House Government Committee to vote along party lines, with the Republicans in the majority, to make it illegal for any employee of a university or community college to tell students they have the legal option to terminate a pregnancy. And her HB 2186 is broad enough to cover health care professionals in a student health center.

State law already bars public facilities, including university-run hospitals, from performing abortions. What Keshel said she wants to do is preclude anyone at the schools, while in their official position, from even discussing the constitutional right to terminate a pregnancy. 

The key, she told colleagues, is that these schools are taxpayer funded.

“Those taxpayer dollars should not be used to directly or indirectly promote or assist an intentional ending of a preborn life,” Keshel said.

But Rep. Stephanie Stahl Hamilton, D-Tucson, said such a restriction will have a “chilling effect” on the advice students seeking care at a university health care center can receive. And that, she said, could lead to students not getting information about how to protect against pregnancy in the first place.

“Once we start down this road and we eliminate any kind of choice, we are not empowering our young people to step through adolescence into adulthood with the tools that are going to keep them healthy and safe and make the choices that are right for them,” she said.

Keshel separately also convinced the House Judiciary Committee to make it a Class 4 felony for doctors to arrange to ship mifepristone, an abortion-inducing drug, to their patients. That carries a presumptive term of 2.5 years in state prison.

And as approved by the panel, even anyone who orders or requests the drug — including a pregnant woman who has a prescription from a doctor and got the drug mailed to her — would be guilty of a Class 1 misdemeanor, an offense that could land someone in county jail for six months.

Shipping the drug already is illegal under state law, but only with civil penalties. Jill Norgaard, who represents Arizona Right to Life, said the law needs more teeth.

“Mail-in abortion drugs circumvent our current medical processes and sidestep responsible oversight,” said Jill Norgaard, who represents Arizona Right to Life. She said this goes beyond what a doctor might prescribe.

“Pills sent by mail with no prescription required can be ordered by children and traffickers — and abusive partners who can give these to pregnant mothers unknowingly,” Norgaard said.

But what she did not mention is that what’s in HB 2364 goes beyond people ordering prescription drugs for themselves or for others under nefarious circumstances.

Jodi Liggett, lobbyist for Reproductive Freedom for All, noted that Keshel’s proposal comes as a judge in Arizona is weighing whether Proposition 139 voids some existing laws — including ones that now block doctors from using telemedicine to prescribe abortion drugs to their patients who may not live in cities with abortion clinics as well as statutes that bar those patients from getting the drugs delivered to them.

The initiative, approved by voters in 2024 by a 3-2 margin, creates a “fundamental right to abortion” before fetal viability.

That generally is considered between 22 and 24 weeks. And it definitely covers the first 11 weeks of pregnancy, in which mifepristone, which induces an abortion, is generally prescribed and considered effective.

The lawsuit pending in Maricopa County Superior Court alleges Proposition 139 specifically overrides the laws banning doctors from providing medical abortion through telemedicine.

The reason, challengers contend, is that the restriction requires patients to travel to a clinic to undergo an in-person physical exam. And a 24-hour waiting period means two visits — all of which they contend interferes with that fundamental right to terminate a pregnancy.

“Telemedicine is a safe, cost-effective, and common way to deliver medical care,” according to the attorneys for the challengers, including two abortion providers and the Arizona Medical Association, who are asking Maricopa County Superior Court Judge Greg Como to invalidate the ban. “Telemedicine patients have comparable clinical outcomes to those who receive face-to-face care, with equivalent success rates and a low prevalence of adverse effects.”

And tied to that, the lawsuit says, is the ban on the delivery of the abortion-inducing drug to the patient.

“Due to this mailing ban, even if a patient seeking medication abortion could meet virtually with their provider for a telehealth consultation, they would still have to make an unnecessary trip to pick up their abortion medication in person,” the challengers argue.

Even if there weren’t constitutional issues, Liggett told lawmakers that Keshel’s proposal is even stricter than a similar law in Texas, which covers only those who prescribe or mail the drug into the state. But she said that, unlike what Keshel has proposed, Texas imposes no penalty on a pregnant person who receives or uses the medication.