In the aftermath of the Supreme Court’s decision to overturn the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, individual states continue to decide the legality of abortion on a state-by-state basis. Both Arizona’s and Florida’s state Supreme Courts recently issued rulings that will severely restrict access to abortion care within their borders.
Arizona
On April 9, the Arizona Supreme Court upheld an 1864 law that will effectuate a total ban on abortions in the state, with a narrow exception for abortions that are necessary to protect the life of the pregnant person.
Enforcement of the total abortion ban has been stayed for 14 days to allow lower courts to consider any other constitutional challenges to the law. After the stay is lifted, the state has also agreed not to enforce the ban for an additional 45 days. Once enforcement begins, however, the Arizona law will impose criminal penalties—punishable by imprisonment for two to five years—on any person who “provides, supplies, or administers . . . any medicine, drugs, or substance” to a pregnant person, or who uses “any instruments or other means” on a pregnant person with the intent to procure an abortion.
Along with the state’s Civil War-era total ban, a 15-week ban remains on the books in Arizona. Thus, in addition to the criminal penalties imposed by the total ban, physicians performing abortions after 15 weeks of gestation in Arizona may face criminal felony penalties, professional discipline, and civil monetary penalties of up to $10,000 per violation of the state's 15-week ban.
The Arizona Supreme Court’s decision will end all access to non-emergency abortion care in Arizona. Abortion advocates are collecting signatures to a ballot measure, the Arizona Abortion Access Act, that would amend the state’s constitution to protect abortions through fetal viability. If the ballot measure is approved, it will appear on the state’s November 2024 ballot.
Florida
On April 1, one week before the Arizona Supreme Court’s decision, the Florida Supreme Court upheld its own 15-week abortion ban. Because of downstream effects of the Florida Supreme Court’s decision, effective May 1, the state will be subject to a six-week ban and an in-person requirement for abortions performed in the state.
The Florida Supreme Court’s decision extends beyond its preservation of the state’s 15-week ban because of trigger provisions in restrictive abortion legislation passed in March 2023, (S.B. 300). S.B. 300’s prohibitions were designed to become effective within 30 days of a Florida Supreme Court decision upholding the 15-week ban. Thus, effective May 1, 2024 (30 days from the Florida Supreme Court’s April 1 ruling), a ban prohibiting physicians from knowingly performing or inducing an abortion after six weeks of gestation will also be in effect in Florida. The six-week ban contains limited exceptions for abortions necessary to save the life of the pregnant person, in the event of a fatal fetal abnormality before the third trimester, or in the case of rape, incest, or human trafficking before 15 weeks of gestation. S.B. 300 also contains an in-person requirement prohibiting physicians from using telehealth to perform abortions. The law expressly states that “any medications intended for use in a medical abortion must be dispensed in person by a physician and may not be dispensed through the United States Postal Service or by any other courier or shipping service.” Finally, S.B. 300 prohibits the use of state funds for a person to travel to another state to receive services that are intended to support an abortion, unless that expenditure is required by federal law or to save the life of a pregnant person.
A ballot measure proposing to modify the Florida state constitution to state broadly that “no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider” will appear on the ballot for Floridians to vote on in November 2024. If passed, this ballot measure would reverse the effects of the Florida Supreme Court’s recent ruling.