By Turner Smith.
Arizona Senate Republicans narrowly voted to pass Senate Bill (“SB”) 1164 on February 15, 2022. SB 1164 bans abortions after 15 weeks. SB 1164 advanced to the House where it received its first read on February 28, 2022. With a very slight Republican majority, SB 1164 will likely pass. Governor Doug Ducey, who has a strong “pro-life” record, will almost certainly sign SB 1164, should it come across his desk.
SB 1164 is modeled closely after Mississippi’s 2018 House Bill (“HB”) 1510, which similarly bans abortions after 15 weeks. The constitutionality of that bill is currently being considered by the Supreme Court, which heard arguments in December 2021. Like HB 1510, SB 1164 provides only one exception—for cases of medical emergencies. It does not make an exception for cases of rape or incest.
Senate Democrats voiced several concerns about SB 1164, but their allegations of unconstitutionality rang strongest. Senator Martin Quezada challenged Senator Nancy Barto, SB 1164’s sponsor, on the subject. In response to Senator Quezada questioning whether SB 1164 is constitutional, Senator Barto simply stated, “I believe it is. I believe it is. I believe our constitution stands clearly for life, liberty, and the pursuit of happiness and the first part of that is life.” Senator Quezada was unconvinced. But who is right?
The Current State of Supreme Court Abortion Jurisprudence
With its consideration of HB 1510, the Supreme Court could, and very well may, change much about their abortion jurisprudence in the coming months. But it has not done so yet. Until then, the constitutionality of SB 1164, should it pass and subsequently be challenged, will be evaluated under the doctrines established in Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, Whole Woman’s Health v. Hellerstedt, and June Medical Services LLC v. Russo.
Roe constitutes the cornerstone of modern abortion jurisprudence, establishing that “the right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” To be clear, the Court did not declare an absolute abortion right. Rather, the Court established a trimester framework. During the first trimester, states were prohibited from regulating the abortion right. During the second trimester, states were permitted to regulate the abortion right, but only in ways “reasonably related to maternal health.” After viability, which the Court stated to be in the range of 24 to 28 weeks, states were allowed to regulate, or even ban, abortions. The viability piece is key to a proper understanding of modern abortion doctrine: states may not ban pre-viability abortions.
The trimester framework was abandoned in Casey. Casey allowed states to regulate the abortion right pre-viability in select circumstances. To establish a workable framework, the Court articulated the “undue burden standard.” It prohibited regulations of pre-viability abortions where the “state regulation imposes an undue burden on a woman’s ability to make [the decision to secure an abortion].” It clarified the term “undue burden,” stating that a “finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” This undue burden standard is at the heart of modern scrutiny of abortion regulations.
Hellerstedt and Russo modified (or clarified, depending upon your interpretation) the undue burden standard. They held that courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Put another way, the cases combined to affirm that the undue burden standard contained a balancing component in which the benefits of the abortion regulations were weighed with its detriments to help the Court discern whether the burden was, in fact, undue. Presumably, greater benefits may justify heavier burdens.
Is Senator Quezada Correct? Is SB 1164 Unconstitutional?
At least for now, the answer to both questions is a resounding yes. As the law currently stands, Senator Barto’s constitutional justification for SB 1164, while heavy on rhetoric, is entirely devoid of merit and substance.
The analysis begins with a simple question: does the statute in question apply to pre-viability abortions, post-viability abortions, or both? SB 1164 applies to pre-viability abortions because it prohibits abortions past 15 weeks—well before even the most ambitious estimates of viability. Thus, in order to survive scrutiny, SB 1164 must avoid presenting an undue burden. It may not have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”
From here, the outcome is clear. SB 1164 outright bans all abortions after 15 weeks, except when necessary for the health of the mother. This type of ban goes far beyond an undue burden. It does not merely make securing a legal pre-viability abortion unjustifiably difficult; it makes it an absolute impossibility. The second step of the analysis is entirely unnecessary. If the right to a pre-viability abortion is to remain, no purported benefit can justify such a ban.
If House Republicans are intellectually honest about SB 1164’s current constitutionality, it will not pass. In the event that it does, however, it will not survive scrutiny under the undue burden standard. SB 1164’s only true hope for survival is a decision by the Supreme Court to uphold HB 1510, a decision that would dramatically restructure modern abortion jurisprudence. That decision, as Senator Barto certainly hopes, may well be coming.