The future of reproductive rights for a wide swath of the Mountain West may be decided next week, as three state Supreme Courts hear arguments in cases that will determine abortion access in the region. Here’s what to know.
Which law is the law in Arizona?
When the U.S. Supreme Court returned abortion regulating power to states, Arizona had two seemingly conflicting abortion laws on the books. One, passed just a few months before Roe v. Wade was overturned in 2022, outlaws abortion after 15 weeks. The other, which dates back to 1864, is a near-total ban.
Arizona abortion providers didn’t know which law to follow, until the Arizona Court of Appeals decided to “harmonize” the state’s conflicting abortion laws last December. Judges said the 1864 near-total ban should continue to apply, but only for non-physicians. Doctors could follow the newer law and provide abortions up to 15 weeks.
This week, the state Supreme Court will reconsider that ruling to decide which law, or combination of laws, will be enforced.
The justices – all appointed by Republican governors – are known to be conservative. Justice Bill Montgomery, who has made public statements accusing Planned Parenthood of “genocide,” recused himself from the case. But even if the six remaining justices were to decide abortions are illegal in the state except in life-saving circumstances, there is still a question of enforcement.
Arizona Attorney General Kris Mayes said she will not prosecute doctors for performing abortions. And Democratic Gov. Katie Hobbs issued an executive order to give Mayes – not county attorneys – the final say when it comes to abortion.
Whatever the court decides, abortion advocates are already pursuing a 2024 ballot measure that would enshrine the right to abortion in the Arizona Constitution.
New Mexico allows abortion – can local governments ban it?
Abortion is legal in New Mexico, where the state repealed a 1969 ban on the procedure in 2021. Post-Roe, abortion rates in New Mexico have more than tripled as surrounding states have banned or restricted the procedure. Clinics forced to close in nearby Texas and Mississippi have even relocated to the state.
But some conservative areas of New Mexico responded by passing their own local ordinances restricting abortion providers. This week, the state Supreme Court will hear arguments about whether these de facto local bans are lawful.
In January this year, Democratic Attorney General Raúl Torrez asked the state Supreme Court to nullify those ordinances in Roosevelt and Lea Counties and the cities of Clovis and Hobbs. Torrez argues they violate the New Mexico Constitution’s equal protection clause and exceed local governments’ authority to regulate health care.
Since then, two more localities passed local abortion restrictions and the state Legislature enacted a new law prohibiting local governments from restricting access to reproductive health care.
The stakes could be higher than just access to reproductive health care in New Mexico. All the local ordinances cite a 150-year-old federal law known as the Comstock Act, which prohibits the mailing of anything that could be used to induce abortion.
The law has been largely dormant for decades, but anti-abortion activists say that by citing the federal law in local ordinances, they hope to escalate the matter to the Supreme Court of the United States.
Who gets a say in Wyoming’s lawsuit about abortion access?
Under the Wyoming Constitution, people have the right to make their own health care decisions. But does abortion qualify as health care in the state?
That is the question before a judge in Teton County, Wyoming this week, who could issue a ruling or decide to send the case to trial next spring.
The state Supreme Court is hearing arguments over whether to allow two Republican state lawmakers and anti-abortion group Right to Life Wyoming to intervene in the case.
If that happens, the case may have to start all over again, to include arguments from the added parties.
Wyoming’s near-total bans on abortion and abortion medication were temporarily blocked earlier this year. Teton County Judge Melissa Owens combined separate challenges to the laws into one case.
One of the plaintiffs, Dr. Giovannina Anthony, said she and other abortion access advocates plan to continue suing the state no matter what happens.
“That appears, at this point, to be the means at which we keep abortion legal,” Anthony said.
Even if abortion does remain legal in Wyoming, access is still limited– there are only two clinics in the state that provide abortions, and one of them is set to shut down next week due to the high cost of rent, labor and supplies. That will leave only one in-person provider this winter in Casper, a city in central-Eastern Wyoming.
In neighboring Idaho, a lower court will hear arguments Thursday to determine whether four women who were denied abortions despite the risk to their health can continue their lawsuit against the state of Idaho. Idaho’s ban only permits abortions in cases of rape, incest and medical emergencies.
If abortion is outlawed in Wyoming, people will need to travel hundreds of miles to Colorado or Montana for access to care.
