How abortion rights advocates say midterm elections could impact access in Arizona

(WASHINGTON) — Arizona abortion rights advocates have been fielding confusing abortion laws in the state for months. Now, those advocates say the midterm elections are critical for determining access to abortion in the state.

Abortion providers in Arizona have been living in “legal limbo” since the Supreme Court overturned Roe v. Wade in June, abortion rights advocates say.

A near-total abortion ban in the state with language dating back to 1864 was never technically repealed after the 1973 ruling of Roe. After the overturning this summer, the state’s current attorney general, Mark Brnovich, sought to reinstate that territorial-era ban, which a Pima County judge did in September.

Abortion providers and patients had to shift again when a court of appeals halted the 1864 law, instead invoking a 15-week ban that continues to be in place. However, that court is currently considering arguments on that law, as well as the 1864 law.

Going into the midterm elections, abortion rights advocates say the incoming elected officials will determine what happens next.

The Republican candidates for governor and attorney general, Kari Lake and Abe Hamadeh, said earlier this summer they would “follow the law” in regards to an abortion ban, but have stayed quiet on the subject in recent weeks as the election nears.

“Their silence speaks volumes,” said Kristin Mayes, a Democrat who is running for attorney general. “That’s for a reason. They know how absolutely unpopular this 1901 law is. They know how indefensible it is, and they know that when Nov. 8 comes, the people of Arizona are going to resoundingly reject this extreme abortion ban, this attack on the people of Arizona, by voting them down.”

Lake and Hamadeh did not respond to ABC News’ request for comment about Mayes’ statement.

Advocates are looking to Katie Hobbs, the Democrats’ gubernatorial candidate, and Mayes to counter a possible ban. While the two could not pass or overturn a law already in effect, they could impact whether that law is enforced or veto further bans passed by state legislature. Both Hobbs and Mayes have pledged to not sign or prosecute any laws that ban abortion.

Abortion rights advocates in the state say Mayes’ election is critical to ensuring abortion access.

“[Brnovich’s] office is the one who is fighting to lift the injunction,” Amy Fitch-Heacock, founding committee member and communications director of Arizonans for Reproductive Freedom, told ABC News. “If we have Kris Mayes in office, the very first thing she can do is say we are not prioritizing this case anymore.”

Brittany Fonteno, president and CEO of Planned Parenthood Advocates of Arizona, told ABC News the reason Arizona abortion laws have been in such limbo is because of Brnovich’s actions in the attorney general seat.

“[Brnovich] decided to go to the court and ask the court to lift an injunction on the near total ban on abortion,” Fonteno said. “Nobody asked for this. He made this completely politically motivated move by putting politics over patients.”

“We believe this is the best and most accurate state of the law,” Brnovich said in a July statement. “We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state.”

Electing Hamadeh, Fonteno said, will ensure abortion bans are enforced, which Fonteno claims is not what the majority of Arizonans want. According to a Change Research poll from earlier this year, 71% of Arizonans oppose making abortion illegal.

ABC News has heard from some Arizona residents who say the Republicans do not plan to fully ban abortion.

“It’s not [totally banned]. That’s a scare tactic. That’s an absolute scare tactic,” Karen Deadrick said this summer. “And you know what, they can go to California and get there first, and if they want to, I think the Californians will even pay for you to travel there to get them to get there. So you know, if you’re really passionate about it, go there and get one.”

“They’re making it sound like Republicans want to just stop all of it,” Krista Smiley, another resident, told ABC News this summer. “That’s not true. It’s not true. There’s Christian organizations. There’s stuff out there to help.”

For abortion rights advocates whose work includes funding travel, medical and general expenses for Arizonans seeking abortion, electing an attorney general they know will not prosecute the procedure is critical, Eloisa Lopez, executive director of Pro-Choice Arizona and Abortion Fund of Arizona, told ABC News.

“Since June, our state has kind of been flipping back and forth about every two weeks with access, no access, and then access again, and then limited access, so it’s really been a state of chaos,” Lopez said. “Not just for patients who are trying to get appointments, but also for us organizations on the ground, who have to help people move to get their care.”

Beyond prosecution, the governor’s ability to veto legislation from the state legislature will also determine the state of abortion access in Arizona, Lopez said.

“Whoever moves into these positions of power, they are going to determine the course of our state, not just in the short term, [but] for the next couple of years while they hold office,” Lopez said.

New anti-abortion rights laws, she said, would “make it even harder for our state to get back to a level where we do have access and protections” because the more a state restricts abortion, “the longer it takes for us to repair and build it back into our communities.”

Fitch-Heacock added that while Hobbs has pledged to veto any legislation that further bans abortion in the state, Lake is likely to sign on to Republican efforts to limit access.

“We’ve already seen the Republican blueprint,” Fitch-Heacock said. “We know that they want a nationwide 15-week ban.”

However, Lake, like Hamadeh, has refrained from commenting on abortion during the last several weeks of her campaign. Lake is currently polling ahead of Hobbs, with a 64% chance of election, according to FiveThirtyEight.

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