By Katharine Greer.
‘Tis the season for bills. On January 9th, the Arizona State Legislature opened with forty-one new members and a new governor. Representatives and Senators are excitedly plopping their bills in their respective hoppers. As of January 25th, 783 bills have been introduced, a number that will likely increase until the Senate and House deadlines (January 30th and February 6th, respectively). It’s unclear how many of these bills will make it to the finish line. In 2022, the legislature introduced 1,613 bills, and yet, only 388 were enacted into law.
To appease their constituents, members have already introduced bills concerning “hot button” topics such as critical race theory, drag shows, pronouns, and abortion. Representative Athena Salman, a Democrat representing District 8, introduced a particularly interesting bill on state benefits for pregnant women who are compelled to give birth to a child. Why would Representative Salman introduce such a bill? To answer this, we must first look at the landmark decision Dobbs v. Jackson Women’s Health Organization and its effect on the current abortion laws in Arizona.
Dobbs and Arizona’s Current Abortion Law
On June 24, 2022, the U.S. Supreme Court overturned Roe v. Wade and eliminated the federal constitutional right to abortion. The Dobbs decision gave states full power to regulate any aspect of abortion not protected by federal law. Pre-Dobbs, abortions in Arizona had been legal up until viability, typically 23-24 weeks. However, post-Dobbs, the legality of abortion was unclear.
In 1864, 48 years before Arizona became a state, the territory passed a law that only allowed an abortion if a patient’s life was in jeopardy. This territory-era law had been blocked by Roe but was never formally taken off the books. Once Dobbs was decided, the near all-out ban could have potentially been reinstated. However, earlier that same year, Arizona passed a law that allowed abortions through the 15th week of pregnancy with no exceptions for rape or incest. So, which law controlled?
On December 30, 2022, the Arizona Court of Appeals held that doctors could not be prosecuted under the territorial-era law. It did not repeal the 1864 law, but rather said that the new 15-week ban simply added another exception to it. Bottomline: Arizonans can legally get an abortion if they are 15 weeks pregnant or less.
HB2138: Arizona Pro Birth Accountability Act
It seems HB2138 is meant to provide those affected by new abortion restrictions with alternative support. It provides that a pregnant woman who is barred from seeking an abortion by the state and compelled to give birth to a child is entitled to a litany of benefits.
These include compensation for reasonable living, legal, medical, psychological, and psychiatric expenses that are directly related to pregnancy and childbirth. The mother can claim the unborn child as a child for tax purposes and is automatically enrolled in various existing public assistance programs like the Supplemental Nutrition Assistance Program. If the woman or unborn child dies or develops any sort of disability as a result of the pregnancy, the state would be required to reimburse any and all expenses associated with the loss of life or new disability. The child’s health insurance and health expenses would be paid for by the state until they turned eighteen. Furthermore, the bill provides for a fully funded college savings plan for the child.
The estate of the woman can pursue a civil action against the state if she dies because of the pregnancy or the woman herself can sue the state if she experiences a miscarriage. Finally, if the biological father is known, he is required to pay child support starting when the woman becomes aware of the pregnancy. He risks a misdemeanor charge and up to three years in prison if he accrues more than $5,000 in owed-child support fees. Part of the prison sentence can be suspended if he consents to a voluntary vasectomy and the payment of child support.
To receive these benefits, a woman must file an affidavit with the Department of Economic Security indicating that if not for current Arizona abortion law, she would have chosen to terminate the pregnancy. It must be filed any time after the woman becomes aware of the pregnancy and before the birth of the child.
Will HB2138 Survive?
This bill is incredibly progressive. It’s a Democrat’s answer to increasingly restrictive abortion laws. The logic is simple: if you’re going to force women to carry out their pregnancies against their will, then you should financially support them. With a Republican-controlled House and Senate, it’s unlikely to make it through the legislative process unscathed.
While the bill was quickly assigned to committees, it was also, unfortunately, assigned to three: Health and Human Services, Judiciary, and Appropriations. Assigning a bill to multiple committees is often a way to make its journey to becoming law incredibly difficult. HB2138 must be heard by each committee and voted on before moving on to the Rules Committee for final constitutionality checks by February 17th. Even if this happens, Representative Salman will need every Democrat and at least three Republicans in the House to support her bill before it goes to the Senate. It will be an uphill battle, but that’s nothing new for progressive policies in Arizona.
To be fair, extending state benefits for those who are pregnant is not unheard of in Arizona. Last year, Governor Ducey signed legislation to extend Medicaid benefits to women 12 months postpartum, regardless of changes in income. It’s possible that everything will align, but realistically, this bill seems to be more of a political statement. Although, all great policy changes begin as statements. If anything, it shows the Republican party that policy is not enacted in a vacuum. If you’re going to claim to be pro-life, it must be backed up with state benefits. Forcing women to carry pregnancies to term also means forcing women to raise children.
As of January 25th, HB2138 has yet to be put on a committee’s agenda. With little hope for less restrictive abortion laws, Representative Salman’s bill is a lone ranger holding states accountable for the consequences of taking away a woman’s right to choose. Let’s hope, at minimum, this bill motivates more Arizona Representatives and Senators to support the groups their policies directly affect.
By Katharine Greer
J.D. Candidate, 2024
Katharine is a 2L Staff Writer and the Articles Committee Chair for Arizona State Law Journal. Katharine was born and raised in Phoenix and attended Arizona State University for her undergraduate degree in Psychology. She is interested in legislative policy work and administrative law. Katharine loves to cook and spends her weekends playing Dungeons and Dragons with friends.