Proposition 139: What to know about the Arizona Abortion Access Act

PHOENIX - Here's what to know about Arizona's Proposition 139, and why people are for or against the ballot measure.

What's Proposition 139?

Proposition 139 is a measure that aims to amend the Arizona State Constitution.

In this case, the measure will amend Article II of the Arizona State Constitution by inserting a new section on the issue of abortion.

"Every individual has a fundamental right to abortion," read a portion of the proposed language that will be inserted into the state's constitution, if the measure is approved by voters.

Besides declaring a fundamental right to abortion for every individual, the ballot measure also bans the state from the following:

• Denying, restricting, or interfering with abortion rights before fetal viability, "unless justified by a compelling state interest that is achieved by the least restrictive means."
• Denying, restricting or interfering with an abortion that takes place after fetal viability that, "in the good faith judgment of a treating health care professional, is necessary to protect the life or mental health of the pregnant individual."
• Penalizing any individual or entity for "aiding or assisting a pregnant individual in exercising the individual's right to abortion."

What is fetal viability?

Proposition 139 defines fetal viability, for the purpose of the law, 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."

According to an article published on the National Library of Medicine's website, 24 weeks is considered to be the threshold for fetal viability in the United States.

What is the current state of abortion in Arizona?

Since the overturning of the Roe v. Wade ruling by the U.S. Supreme Court in 2022, Arizona has seen a legal conflict involving two drastically different laws on abortion.

One of the laws involved, known as A.R.S. (Arizona Revised Statues) 13-3603, prescribes a criminal penalty for people who help a pregnant woman get an abortion.

"A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years," read the law.

The law that became known as A.R.S. 13-3603 can trace its roots to a time before Arizona’s statehood in 1912. It provided no exceptions for rape or incest, and allowed for abortions only if the mother’s life is in jeopardy. It had been blocked since the Roe v. Wade decision.

The other law, known as A.R.S. 36-2322, bans abortions after 15 weeks, with exceptions made for medical emergencies.

"Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks," read a portion of A.R.S. 36-2322.

After Roe was overturned, then Arizona Attorney General Mark Brnovich announced that he will seek to set aside a ruling that made A.R.S. 13-3603 unenforceable. In April 2024, the state's Supreme Court ruled that A.R.S. 13-3603 can be enforced once again.

Ultimately, A.R.S. 13-3603 was repealed, and the repeal took effect on Sept. 14, 2024. That left Arizona with a 15-week abortion ban.

How will Proposition 139 affect Arizona if it is passed by voters?

Perhaps the most visible impact of Proposition 139, if voters approve it, is that the right to abortion will be included in the state's constitution.

According to an analysis by the Legislative Council, Proposition 139 will ban government agencies within the state from enacting, adopting, or enforcing any laws, regulations, policies, or practices that deny, restrict, or interfere with the right to abortion before fetal viability, or abortions after fetal viability that health care professionals believe is necessary to protect a pregnant person's life, physical health, or mental health.

As for the monetary impact it could have on Arizona, an analysis by the Joint Legislative Budget Committee estimates the measure "would not have a direct fiscal impact on state or local government."

"Under current law, the state and local governments are prohibited from expending public monies on health insurance policies that provide coverage, benefits, or services related to the performance of any abortion unless the abortion is necessary to save the life of the woman having the abortion or is necessary to avert substantial and irreversible impairment of a major bodily function of the woman having the abortion. That policy would not be changed by the initiative," read a portion of the JLBC analysis.

The analysis also states the initiative may impact the number of abortions that are performed in Arizona, but the JLBC "cannot determine in advance whether such impacts would generate any indirect effects on state revenues and spending."

What are proponents saying about Proposition 139?

In the General Election Publicity Pamphlet for the November election, those who support the measure say healthcare decisions should not be made by politicians.

"Where politicians have successfully banned access to abortion, we’ve seen dangerous results. Bans mean doctors may not have the ability to help women through miscarriage, complex difficulties of pregnancy, and serious medical and psychological problems. This can leave patients with life-threatening complications, taking away the opportunity for them to have a child in the future, or worse," physician Candace Lew wrote. Lew is identified in the pamphlet as the chairperson of a group called Arizona for Abortion access.

One doctor even recounted his family's experience with a miscarriage that necessitated an abortion measure, noting that a delay could have had life-of-death implications.

"My wife and I suffered a miscarriage with our second pregnancy. She was severely hemorrhaging and went suddenly unconscious in the Emergency Room due to rapid blood loss. She had to have an emergency D&C in order to save her life," Andrew Carroll and Theresa Carroll wrote, in a joint statement. "Any kind of delay, especially those proposed by those opposed to full-scope maternal care, would’ve deprived me of the woman I adore and our son of his loving mother."

Two proponents who state they are with the group Las Adelitas in Tucson said the measure would help Latina women.

"Lack of access to abortion and reproductive healthcare has negative impacts on our ability to work, care for our families, and make decisions about our bodies and lives," Elvira Din and Genesis Cubillas wrote. "Abortion bans only amplify the disparities that already exist for Latinas in this country."

What are opponents saying about Proposition 139?

Some opponents of the measure claim if Proposition 139 is approved, measures that they believe are safeguards for women seeking an abortion would be removed.

"Currently, an ultrasound is required to rule out a deadly ectopic pregnancy, and to ensure no fetal remains are left in the uterus to cause infection. But that commonsense safety precaution could be
unenforceable under the terms of the amendment. Even a current requirement to inform women of the risks of abortion would be on the chopping block," wrote Leisa Brug, who is identified as the campaign manager of a group called ‘It Goes Too Far.’

Some opponents also claim the measure would allow for unrestricted abortions in Arizona.

"Prop 139 is egregious in that nowhere does it highlight the need for a medically trained, state-licensed physician to participate in the women's right to choose. Instead, it intentionally leaves the door wide open for non-medically trained individuals, which Prop 139 ambiguously calls "healthcare professionals," to determine not only pregnancy viability but unknown health risks to the mother as well," wrote Choices Pregnancy Centers President and CEO Marc Burmich. 

At least one of the opponents' response in the pamphlet invoked religion as a reason for opposition.

"Every human life is valuable because every human life, born and pre-born, is wonderfully made in the image of God as Genesis 1:27 and Psalm 139:13-14 make clear. Abortion is the ending of that innocent human life, and it results in danger and hurt toward women, as Exodus 21:22-25 and Genesis 9:6 warn," wrote pastor Eric Jones of a Gilbert church called 'Evident Life Church.'

What do polls say about the issue of abortion in Arizona?

Findings from a KFF Survey of Women Voters that was done from May 23 to June 5, 2024 show that 67% of women voters support an initiative to enshrine a right to abortion until fetal viability in Arizona.

Specifically, the survey states that 45% of women voters strongly support such a ballot measure, while a further 22% somewhat support it.

When broken down by party affiliation, 74% of Democratic women surveyed say they strongly support the measure, while 46% of women surveyed who identify as independent say they strongly support it.

As for Republican women surveyed, 41% say they strongly oppose the measure, with a further 20% saying they somewhat oppose it.

It should be noted that at the time the survey was done, signatures for what is now Proposition 139 have yet to be submitted to the state government: that happened on July 3. The survey clearly states that an initiative to enshrine a right to abortion until fetal viability in Arizona may appear on the November ballot.