PHOENIX — An anti-abortion law firm is asking the Arizona Supreme Court to reverse a lower court ruling and once again make virtually all abortions illegal in Arizona.
In new legal filings, attorneys for the Alliance Defending Freedom contend the judges on state Court of Appeals got it wrong when they said a territorial-era law outlawing the procedure does not apply to doctors. The judges said that a 2022 law enacted by legislators supersedes that older law and effectively gives licensed physicians the right to terminate a pregnancy, with the woman’s consent, through the 15th week of pregnancy.
But the challengers argue it was never the intent of the Legislature, in approving that 2022 law, to override the older statute. And now they want the state’s high court to say that the law of the land in Arizona is that the only time an abortion ever can occur is to save the life of the mother.
The justices are inheriting a complex issue.
Abortions except to save the life of the mother were illegal in Arizona until the U.S. Supreme Court ruled in 1973 that women have a constitutional right to terminate a pregnancy prior to fetal viability. That generally is considered to be between 22 and 24 weeks.
That overrode the territorial-era law, precluding its enforcement in Arizona. But state legislators never repealed the statute and it remains to this day on the books.
What changed was the decision by the Supreme Court last year to review a Mississippi law that sought to ban abortions after 15 weeks. Anticipating a favorable decision, abortion foes in Arizona enacted and Gov. Doug Ducey signed mirror legislation to have it ready to enforce here.
But the Supreme Court actually went further, overturning its own 1973 precedent and leaving it up to each state to decide what restrictions or outright bans they want to place on abortions. Abortion foes here argued that returned the law to the way it was before Roe, pointing out that the original Arizona law, while unenforceable since 1973, remains on the books.
Based on that, Mark Brnovich, who was the attorney general at the time, got Pima County Superior Court Judge Kellie Johnson to rule that the old law was once again valid. And abortions came to a halt in Arizona.
The Court of Appeals disagreed, agreeing with Planned Parenthood Arizona that the 2022 law prohibiting doctors from performing an abortion after 15 weeks supersedes the old law. That sets the stage for Supreme Court review.
But the legal playing field is different now.
Voters in November elected Democrat Kris Mayes as attorney general. And she is siding with Planned Parenthood in the fight.
In fact, Mayes contends that a provision in the Arizona Constitution guaranteeing a right of privacy allows for abortions in even more circumstances. That issue, however, is not currently before the state Supreme Court.
Having Mayes support the position that abortions are legal in Arizona through 15 weeks leaves Dr. Eric Hazelrigg, who the court had appointed to represent the interests of unborn children, as the sole defender of the argument that the old law is enforceable and virtually all abortions are illegal. And he is represented by the Scottsdale-based Alliance Defending Freedom.
Exhibit 1 for challengers is the 2022 law itself. It spells out that the 15-week restriction does not repeal the territorial-era law “or any other applicable state law regulating or restricting abortion.”
That, they said, should have been the end of the debate, saying it was the clear intent of people who had elected the lawmakers, “to fully protect life.” Instead, challengers say, the appellate judges resolved a “manufactured conflict” with the new law by partly repealing the old one.
“But Arizona law is clear: No one may perform an abortion except to save the mother’s life,’’ the challengers told the justices in urging them to override the appellate court ruling. And they pointed out that the old law — the one never repealed — makes it illegal for any “person” to perform an abortion, saying that term is defined broad as “a human being.”
“Physicians are human beings,” they argued, meaning the old law applies to them. “Indeed, physicians were prosecuted for violating prior versions of (that law) before it was enjoined.”
They also contend that there is no inherent conflict between the old law and the new one, saying both criminalize abortion, though one does so only after 15 weeks.
It isn’t just Planned Parenthood and Mayes who believe the newer law takes precedent.
After signing the 15-week ban, Ducey told Capitol Media Services that he believed it would preclude the state from once again enforcing the territorial-era law.
“The law of the land today in Arizona is the 15-weeks law,” he said. And Ducey said the fact lawmakers never repealed the old law which was enforceable until 1973 is irrelevant.
“This law was signed this year,” he said. “I think that the law you signed in 2022 supersedes 1973.”
The justices have not decided whether they will review the appellate court decision.
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