Rep. Athena Salman (D–Tempe) has represented Arizona’s 26th legislative district since 2017. She currently sits on the House Education and Government & Elections Committees, and has been a vocal advocate for reproductive rights in Arizona.
While abortion currently remains legal in Arizona up until the “fetal viability” stage of pregnancy, a complex array of laws makes it still a heavily restricted form of reproductive health care in the state. Attorney General Mark Brnovich said in late June that a 1901 law from Arizona’s territorial legislature banning abortions unless the pregnant person’s life was in danger is now in effect following the overturning of the landmark Roe v. Wade decision.
Though an injunction on the law by an Arizona superior court remains in place, Brnovich said he would soon be asking the court to vacate the junction. In March, Gov. Doug Ducey signed Senate Bill 1164, a bill limiting prohibiting abortions after the first 15 weeks gestation, which is set to take effect on Sep. 29th, 2022, assuming the law is not blocked by the courts. Brnovich and several other state legislators have argued that the passage of SB 1164 does not repeal the territorial law, but this entanglement of regulations has caused some legal uncertainty among providers.
In this Q&A, Salman discusses how the overturning of Roe v. Wade will impact reproductive health care in Arizona and upcoming opportunities to protect reproductive health care in the state.
State of Reform: What would you say is the current state of reproductive health care in Arizona?
Rep. Athena Salman: “The current state of reproductive health care in Arizona is in flux. Right now, there are attorneys that are working their way through the courts to figure out what’s enforceable, how the various abortion bans and restrictions that the Republicans in the Arizona Legislature had passed will impact providers who, for good reason, are not looking to lose their licenses. They’re trying to not be in prison … and I think what’s really happening is that people who need reproductive health care, including pregnant people who are in need of terminating their pregnancy, [now have to face] significant barriers where they can’t access that care. It’s very concerning and I believe this is a public health emergency and crisis.
The last time this country was in this position was pre-1973, and we didn’t have that kind of surveillance and intrusion like where technology is at nowadays. These police departments are so well-funded, and there’s a lack of privacy protections across the board that both state governments and federal governments have failed to [take action] on. Your search history and anything digitally can and will be used against you if you’re a pregnant person seeking abortion care or seeking to terminate your pregnancy for whatever reason. I think people are going to be faced with having to go out of the state or even out of the country. Mexico, our border state, just legalized abortion, so I see Arizonans crossing the border in order to receive this reproductive health care.
It depends on whether or not you live in a city that has a police department that has decided that they will go after people who have early termination of pregnancies, regardless of whether or not it was abortion. It depends on whether or not you live in a county with a county prosecutor who will decide and use discretion to actively prosecute pregnant people and providers for this form of health care. It’s just a reality of what people in Arizona are going to have to be navigating, and a lot of it is going to come down to what city they live in, what county they live in, and whether or not they have the resources to go out of state.”
SOR: How will the overturning of Roe v. Wade impact reproductive health care in Arizona?
AS: “[Extreme, religious, right-wing] organizations have championed abortion restrictions and bans at the legislature. Alongside our attorney general, due to the territorial law that we have on the books banning all abortion except if the health of the pregnant person is at risk, they’ve taken the hardline argument that all abortions are now illegal in Arizona, and what we’ve seen is abortion providers have ceased to provide this service because of the legal uncertainty and the lack of clarity. Right now, people are operating with the utmost caution because, again, nobody wants to risk their livelihoods and spend years, if not longer, incarcerated for just providing what previously was just part of their standard of care.
Disturbingly, last year, we passed an addition to Senate Bill 1457, within the genetic abnormality ban on abortion. We can see pregnant people in Arizona forced to carry pregnancies against their will when an extreme birth defect happens. Within that law, there is a fetal personhood language … That is another reason why providers stopped providing abortion care, because does that mean if a provider provides the abortion pill, are they now accomplices to murder?
There’s just a lot of confusion, and it’s impacting reproductive health care because pregnant people aren’t getting the full and highest standard of care that they need and deserve. Now, instead of just exclusively looking at the health, well-being, and the ultimate desires of the pregnant person and how they want to manage their pregnancy, doctors and providers are having to do additional calculus in Arizona where they have to ask the question, ‘If I provide this health care, am I going to go to prison? Am I going to lose my license?’ I don’t believe that doctors can actually uphold the maximum standard of care that they can in a state like California or Colorado and really look at the health of the pregnant person and if there are complications that can really pose a danger to the pregnant person.”
SOR: What can the legislature do to help protect reproductive health care in Arizona? What is possible given Republican control of state policy?
AS: “This year, Republicans have their trifecta. But we are in an election year and fortunately, this year, our entire executive branch is on the ballot. I think people are researching candidates who believe that their constituents have a right to decide if and when to become parents, [and] candidates who believe that these are medical decisions that should be left to the pregnant individual and their doctor. I mean, those candidates are running for governor. We have candidates that believe in this who are running for attorney general, another law enforcement officer that can or cannot choose to enforce the laws that the legislature has passed.
The other thing that I think is unique about Arizona is that the entire legislature is on 2-year terms, so every single Republican has voted to ban abortion in legislative sessions 2021 and 2022. A lot of those Republicans are in districts where they can lose their seat to a candidate that actually supports abortion rights and the full spectrum of reproductive health care. So there is an opportunity in terms of replacing our elected officials with ones who understand the importance of protecting reproductive health care as a whole.
Aside from that, if the legislature stays controlled by Republicans, and we’re in the unfortunate reality that the Republicans also get the governorship, I see them turn a blind eye to so many other vulnerable constituencies. There are so many other programs that could just be life or death for people that they callously turn a blind eye to. These people are ultimately about exerting control. They are about advancing policies and keeping in place a system that wreaks chaos on people’s lives. So in that scenario, we would try to come out with a carve-out [to prevent people from being thrown in jail] for miscarriages or stillbirths, but honestly, I still think that would be an uphill battle to get them to agree to do those kinds of carve-outs.
If we have a split sharing of power, I think that there is more opportunity to create more protections. Maybe we can roll back some of the abortion restrictions. But I don’t think we would be able to get rid of all the abortion restrictions. The only way to actually be proactive and guarantee protection for the whole comprehensive reproductive health care, from family planning to cancer screening to privacy to providing the conditions in which the pregnancy is healthy and both the mother and the baby are taken care of, is just determining whether or not Democrats control both the legislature and the governorship.
And we see evidence of that in states where that trifecta of Democrats actually exists where they are advancing policies, including the reproductive health care aspect. I’ve introduced some legislation in the past to protect health care access for contraception if ever the Affordable Care Act is overturned. I also introduced legislation to roll back the the abortion restrictions and restrictions on reproductive health care. But those things can actually start moving if we have Democrats in all 3 branches.”
This interview was edited for clarity and length.