By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizona’s territorial-era law outlawing abortion except to save the life of the mother is enforceable, the state Supreme Court ruled Tuesday.

In a split decision, four of the justices said the 2022 ruling by the U.S. Supreme Court overturning Roe v. Wade eliminated what that case had said was a constitutional right of women to terminate their own pregnancy.

Justice John Lopez, writing for himself and three of his colleagues, noted state lawmakers never repealed the old law even after the original Roe decision. That, he said, means it remains valid and enforceable.

The majority also rejected arguments that a 2022 law allowing abortion up to the 15th week of pregnancy superseded the earlier law.

Lopez pointed out Senate Bill 1164, that 2022 measure adopted as a contingency should the U.S. Supreme Court have upheld a 15-week law in Mississippi, specifically said it did not create or recognize a right to abortion. And it also spelled out it was not repealing the territorial-era law.

“This provision can reasonably bear only one meaning: the legislature did not intend the act to codify an independent statutory right to an elective abortion before fifteen weeks’ gestation or
otherwise repeal any other abortion laws more restrictive than S.B. 1164,” Lopez wrote.

But Justice Ann Scott Timmer, writing for herself and Chief Justice Robert Brutinel, said she has to believe that when lawmakers adopted the 2022 law — and the 15-week limit — they intended that it be harmonized with the older law. And she said her colleagues should have ruled that the laws “can and should be interpreted harmoniously to permit their joint enforcement until the legislature, or the people, through the initiative process, say otherwise.”

“This means physicians should be permitted to lawfully perform abortions before the 15-week gestation point or when necessary to preserve the pregnant woman’s health,” Timmer wrote.

For the moment, abortions will continue to be available until the 15th week of pregnancy. That is because a judge handling a parallel challenge to the old law by the Arizona Medical Association issued a legal stay for at least 45 days after the state Supreme Court ruling becomes final.

Tuesday’s ruling allows those challengers to the territorial-era law to now proceed with their own legal theories about why it is unenforceable, which could result in yet another delay.

Angela Florez, president and CEO of Planned Parenthood Arizona, said her organization will continue to provide abortions “for a very short period of time” in the interim while other legal maneuvers are pursued.

“Let me be clear: this is not the end of our fight,” she said. “This law has no place in Arizona.”

But the threat remains that, absent some court action — and soon — Arizona law could go back to making virtually all abortions illegal sometime later this year.

That, however, does not mean anyone actually is going to be prosecuted, at least for the time being.

Attorney General Kris Mayes pointed out Gov. Katie Hobbs issued an executive order last year granting her, as the state’s chief prosecutor, the sole authority to pursue violations of any abortion law. And Mayes said she won’t prosecute any doctor for violating any abortion law; there are no laws allowing women to be prosecuted.

The attorney general also said Monday even if Hobbs’ order is not valid — a point she is not conceding — she still has “supervisory’’ authority over all county attorneys. And that, said Mayes, allows her to order them to stand down and not bring abortion charges.

That, however, is being disputed by Jake Warner. He is an attorney with the anti-abortion Alliance Defending Freedom, which won the case.

“It’s our understanding that her authority does not extend to dictating the prosecutorial decisions of county prosecutors,” he said. “So, in our view, county prosecutors are free to enforce the laws written and so protect unborn life in Arizona.”

Warner also said that could happen in two weeks, when the Supreme Court order becomes final.

He said that 45-day stay of Monday’s ruling applies only in the fight between Planned Parenthood Arizona, which brought the original challenge, and the state, which originally defended the territorial-era law. Warner said none of that affects county prosecutors who were not parties to the state.

Yavapai County Attorney Dennis McGrane already has said he believes the Court of Appeals got it wrong last year when it concluded that the 15-weeks law supersedes the older one. And he even intervened in the state case, represented by Alliance Defending Freedom.

Pima County Attorney Laura Conover, however, said she won’t be bringing charges.

“As we have said since the U.S. Supreme Court decided to overturn the constitutional protections provided by Roe, this office does not intend to spend precious time or resources on the prosecution of those who are put in this impossible position, or medical providers,” she said in a statement.

Maricopa County Attorney Rachel Mitchell did not make such an absolute statement, instead saying she will “continue to focus on the cases that always have been priorities of this office,” like keeping the community safe by holding violent and repeat offenders accountable.

Mitchell said the governor and lawmakers should use Monday’s ruling to “come together to enact a reasonable law” that takes issues into account, like cases of rape, incest or molestation.”

“As a career sex prosecutor, I am keenly aware that the women — and girls — who get pregnant as victims of these crimes are not hypothetical situations,” she said. “They are very real names and real faces to me.”

There is a political component to all of this.

Sen. Eva Burch, D-Mesa, made a plea Monday to Republicans who support abortion rights to choose to make a different choice in November.

“This is the issue of our time,” she said.

“And if you feel that your party has been hijacked by radical extremists, that’s because it has because there isn’t a place for you anymore,” Burch said. “And I’m telling you right now, if you are voting pro-choice, there’s a place for you here.”

Democrats noted they just need to flip two seats in the House and two seats in the Senate to end Republican control, a move that, coupled with Hobbs in the governor’s office, would enable them to not just repeal abortion restrictions but protect against other ideas, like limiting the right to contraception.

But as far as an all-or-nothing choice for voters on abortion in November, it may not come to that.

In a joint statement, Senate President Warren Petersen and House Speaker Ben Toma said Monday’s ruling was “based solely on the text of the law.” But they said that still leaves the policy question, which they said is the purview of the Legislature.

They noted the court left some time before its ruling takes effect. And that, they said, leaves open the possibility the Republican-controlled Legislature would put its own alternative on the ballot, something between banning it outright except to save the life of the mother and the more expansive initiative.

“During this time we will be closely reviewing the court’s ruling, talking to our members, and listening to our constituents to determine the best course of action for the Legislature,” they said.

There already is some sentiment to fix the problem and deny abortion rights advocates the ability to argue that supporting their initiative is the only way to keep the procedure legal in Arizona.

That includes a social media post by Rep. Shawnna Bolick, R-Phoenix, wife of Supreme Court Justice Clint Bolick, who sided with the majority.

“It is time for my legislative colleagues to find common ground of common sense,” she wrote. “The first step is to repeal the territorial law.”

That would leave the 15-week restriction as the only law on the books, effectively making Monday’s Supreme Court ruling about the territorial-era law legally meaningless. And it would make the November election a choice between a 15-week limit and the broader language of the initiative.

Rep. Bolick noted that still would permit most abortions.

In 2022, the most recent data available, the state Department of Health Services aid there were 11,407 abortions performed. Of that total, only 380 were performed after 15 weeks, or about 3.3% of the total.

Bolick is not alone among Republicans who think that a nearly total ban is not good policy. Sen. T.J. Shope said he, too, will work for repeal.

The Coolidge Republican said he voted for the 15-week limit in 2022 because it is “what my district believes to be an appropriate timeline.”

Even former Gov. Doug Ducey, who signed the 15-week restriction, said that should be the law in Arizona.

“It is thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on,” he said in his own social media post.

The other political component is the ruling comes as abortion rights advocates are collecting signatures on an initiative measure that would enshrine the rights of women to terminate a pregnancy.

That proposal would allow the procedure to be performed for any reason at all until the point of fetal viability, generally considered between 22 and 24 weeks of pregnancy. But it also would permit abortions at any time beyond that when a doctor determines it “is necessary to protect the life or physical or mental health of the pregnant individual.”

Backers claim to already have collected 500,000 signatures, more than the 383,923 that would have to be found valid to place the issue before voters in November.

If lawmakers do not repeal the territorial-era law first, that could set the stage for a sharp choice for voters: The broad language in the initiative or enforcement of the territorial-era law with virtually no exceptions.

There is reason GOP politicians here may want to avoid the kind of all-or-nothing choice in November.
That was the decision given to Ohio residents in November. And voters there adopted a measure nearly identical to what is being proposed here by a 13-point margin despite arguments against it by Gov. Mike DeWine that it “goes much too far.”

But Cathi Herrod, director of the anti-abortion Center for Arizona Policy, said she still believes voters here would defeat the measure.

“Arizona is not Ohio,” she said.

The case has taken multiple twists and turns.

It goes back to 2022 when the U.S. Supreme Court was weighing the legality of a Mississippi law that banned abortion at 15 weeks. Arizona lawmakers, anticipating a favorable ruling, approved their own 15-week law to be ready to start enforcing that.

But the justices went a step farther, totally overturning the historic 1973 ruling of Roe v. Wade and its conclusion there is a constitutional right to abortion. That left the decision to each state.

Based on that, Republican Mark Brnovich, the state attorney general at the time, got an order in late 2022 from Pima County Superior Court Judge Kellie Johnson declaring that the long-dormant — but never repealed — territorial law was now enforceable. That brought abortions in Arizona to a standstill.

In the interim, Brnovich left office, replaced by Mayes. And she sided with Planned Parenthood, which was defending the 15-week law.

That left Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, as the sole defender of the old law, having been named by the courts to be the “guardian” for unborn children.

Last year the Court of Appeals overturned Johnson, ruling there is a way to “harmonize’’ both the old law and the 15-week ban. That again freed medical providers to again terminate pregnancies up to 15 weeks.

On Monday, however, the majority of the Supreme Court concluded Johnson was correct and the appellate court was wrong.

The unclear state of the law has gotten the attention of Planned Parenthood, and not just over its ability to perform abortions.

During the time between Johnson’s decision and the Court of Appeals ruling, the organization developed a “patient navigator” program that would refer women seeking an abortion to clinics in California. Dr. Jill Gibson, Planned Parenthood’s medical director, said that remains an option if a ban again goes into effect.

“We anticipate that program will need to be ramped up pretty significantly and very quickly,’’ she said.

Bob Christie of Capitol Media Services contributed to this report.