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Chaotic post-Roe legal landscape in Arizona confuses patients, abortion providers

Registered nurse Danee Jones (left), shown with Dr. Jill Gibson (center) and nurse Kischea Talbert at Planned Parenthood Arizona in Glendale, said she has struggled to answer patients who are confused about the law.Caitlin O'Hara for The Boston Globe

PHOENIX — When Gabrielle Goodrick first heard the news the Supreme Court had overturned the right to an abortion, she did not panic, feeling confident that her business of providing abortions was still legal in Arizona.

But then Goodrick, who owns an abortion clinic called Camelback Family Planning, saw a statement that rocked her sense of security. The Republicans who control the state Senate claimed that providing nearly all abortions was now illegal under a law that goes back to before Arizona was a state.

Unsure what to make of the conflicting information, she made the difficult decision to close down that afternoon.

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“I didn’t know what was going on,” Goodrick said in her clinic one hot July morning as staff bustled in and out, calling her in for consultations.

Goodrick’s confusion is shared by many providers and patients across the country, as the Supreme Court decision in June set off fierce, state-by-state legal battles over abortion access. In Wisconsin and Michigan, for example, Democrats are fighting in court to block abortion laws that long preceded Roe v. Wade, while in Louisiana and Florida, abortion bans were blocked and then reinstated as abortion laws continue to make their way through the court system.

“This is part and parcel [of the] post-Dobbs legal landscape,” said Rachel Rebouché, dean of the Temple University law school, who coauthored a study predicting the chaotic state of abortion law if Roe were struck down. Rebouché noted that attorneys general in some states are looking for “whatever legal argument they can” to put abortion bans in place as quickly as possible, adding to the frenzy of legal battles.

That’s the case in Arizona, where Attorney General Mark Brnovich has gone to court to reinstate the ban on providing nearly all abortions that dates back to at least 1901, and is claiming that law could be enforced even now in most counties. The old law mandates two to five years in prison for anyone who provides an abortion, with the only exception being when an abortion would save a woman’s life.

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Yet that is but one of multiple abortion restrictions circulating in Arizona, creating a shifting legal environment that has plunged providers into a perilous gray zone. For one, there is a new state law that bans providing most abortions after 15 weeks and is set to take effect in September. Then there is a separate antiabortion law passed last year, part of which was aimed at giving fetuses “personhood” rights. That, however, has been preliminarily blocked by a court as it applies to abortion.

Adding to the confusion is which abortion ban would take precedence.

For now, the state’s largest abortion provider, Planned Parenthood Arizona, has elected to halt abortion services at its four clinics that provided them, while it fights the attorney general’s bid to resurrect the pre-statehood ban in court.

“What we’re talking about here is a risk of criminalization — it’s mandatory prison time, up to five years,” said Brittany Fonteno, chief executive of Planned Parenthood of Arizona. “And so, that was not a risk that we could take, having providers or community members go to jail when it could very simply be remedied by our elected officials saying what the law is.”

Meanwhile, Goodrick subsequently took the opposite tack and resumed medication and surgical abortions at her clinic in July, after a judge blocked the personhood law, and while the pre-statehood ban remains tied up in court.

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“There’s risk . . . and levels of risk that people are willing to take,” Goodrick said. “I’m not saying I’m not nervous. But I also know what’s right and what’s wrong. I’m not doing anything wrong.”

PHOENIX, 7/27/2022 - Dr. Gabrielle Goodrick looks at a patient’s ultrasound printout with Resident Physician Julissa López at Camelback Family Planning in Phoenix, Ariz. Caitlin O’Hara for The Boston Globe 00arizonaabortionCaitlin O'Hara for The Boston Globe

Abortion clinics such as Goodrick’s have seen an increase in demand for their services due to the stoppage by Planned Parenthood, which provided around 40 percent of all procedures in the state in 2020.

Many of those independent abortion providers are struggling to keep up, while fearing the law could change and disrupt their plans yet again.

DeShawn Taylor, owner of Desert Star Family Planning, said she is limiting abortions to those done with medication at up to 11 weeks of gestation, but has ceased providing surgical abortions due to a shortage of staff.

Desert Star is now operating as a “pop-up” clinic, Taylor said, where patients are asked to come in the day they call for their initial consultation, and schedule abortions for the day after. Taylor said patients are unsure who is still providing abortions right now, and acknowledged that her own services have been inconsistent. She’s struggled to keep her hours updated in real time online, which has resulted in frenzied calling from patients every day.

“They’re getting conflicting messages, not only from the state but from providers ourselves,” Taylor said. “But at the same time, though, we can’t come out and make bold statements about things that we also don’t have complete clarity about either.”

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At Goodrick’s clinic, for example, a sign taped to the front door advised patients that because of “the upcoming possibilities of policy/law changes in the country and in Arizona, we are shifting our schedule to see as many patients as we can as soon as we can.”

It went on to warn that wait times might be longer than normal “as we adjust to this new reality.”

That clarity might be a long time coming, as multiple legal battles continue to play out and elected officials refuse to issue clear guidance. For example, Republican Governor Doug Ducey has argued the 15-week ban he signed will supersede the more sweeping pre-statehood ban when it goes into effect in the fall. But the text of the new law specifically says that it does not. His office did not answer a question from the Globe on the discrepancy.

Meanwhile, Brnovich, the attorney general, is arguing the pre-statehood ban could be enforced now, although no judge yet has ruled that to be the case. The old law was permanently blocked by a court in Pima County in 1973. Brnovich is making the case that the injunction currently applies only to the county attorney in that county, while Planned Parenthood Arizona maintains that it’s clear the pre-statehood law was blocked statewide, and is asking the court to make that plain.

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In the meantime, reproductive rights activists say the confusion has already chilled abortion access in the state.

“What’s really frightening about what’s happened in Arizona is that it is . . . the public officials’ statements that has created this climate of fear, and that has really achieved an end in Arizona on the ground that both the law does not intend and that Arizonans clearly do not want,” said Jessica Sklarsky, senior staff attorney for the Center for Reproductive Rights, which is fighting the Arizona “personhood” bill in court.

The lack of coherence has left abortion providers at a loss. In Tempe, approximately half of the Planned Parenthood Arizona facility was dedicated to providing abortions, and is now virtually empty.

Among patients, there was a feeling of disbelief and confusion.

“I spoke to one patient, it was a husband. He was supposed to come in, and I was telling him like, ‘We can’t see your wife,’ ” said Danee Jones, a registered nurse at Planned Parenthood Arizona. “And he was like, ‘But the governor signed a 15-week ban and she’s under 15 weeks, so why can’t you do it?’ ”

Jones said she struggled to answer him.

The next hearing date in the battle over the pre-statehood law is set for Aug. 19. For now, abortion rights advocates find themselves in the unfamiliar position of hoping the 15-week ban becomes the law of the land rather than the more sweeping ban.

“We’ll be lucky if we just have the 15-week ban,” Goodrick said, “which used to seem really onerous but now is like a dream if we can have that, honestly.”


Lissandra Villa Huerta can be reached at lissandra.villa@globe.com. Follow her on Twitter @LissandraVilla.