By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Justices of the Arizona Supreme Court wrestled Tuesday with the question of whether lawmakers who approved allowing abortions through the first 15 weeks of pregnancy in 2022 actually intended to outlaw the procedure entirely if they ever were allowed.

During an hour-long hearing Tuesday, Jacob Warner of the anti-abortion Alliance Defending Freedom said that state lawmakers, in enacting that 15-week ban, did not repeal the older law that makes it a crime to terminate a pregnancy except to save the life of the mother. He contends there is no conflict, arguing the 15-week law simply adds an additional provision, making it illegal to perform abortions after that point except when there is a “medical emergency” to save a woman’s life or prevent serious risk of substantial and irreversible impairment of a major bodily function.

What that reflects, Warner told the justices is an intent by lawmakers to include an additional hurdle for pregnancies after that point, as all abortions to save the life of the mother are not emergencies.

But that claim the two laws do not conflict drew a skeptical response from Chief Justice Robert Brutinel. He said that is rewriting history.

Brutinel said that’s not what lawmakers said when they adopted the 15-week ban in 2022. Instead, he said, they were anticipating the U.S. Supreme Court upholding a similar law from Mississippi, with the idea to have a similar law on the books here once that occurred.

“They just got more than they asked for,” Brutinel said, pointing out the nation’s high court went further and overturned entirely the 1973 case of Roe v. Wade that said women have a constitutional right to abortion. That returned the decision of abortion laws to each state, a decision that Warner argued resurrected the territorial-era law making it a crime, punishable by up to five years in prison, for anyone to terminate a pregnancy except to save the life of the mother.

The problem with that, said Brutinel, is that the 2022 law actually gave specific permission in the state health code for doctors to perform abortions through 15 weeks. But he said what Warner is arguing that doesn’t conflict with the fact that the old law — the one his client, Dr. Eric Hazelrigg of the anti-abortion Crisis Pregnancy Center wants the court to allow to take effect — makes performing virtually any abortion a crime.

Put another way, Brutinel said, Warner’s reading would require a doctor, faced with a woman less than 15 weeks pregnant who wants an abortion — allowed under the 2022 law — “would have to figure out elsewhere that it’s criminalized in a different section of statute.”

“That’s a little unusual,” the chief justice said. “That’s not the usual course of conduct.”

Hanging in the balance is whether women in Arizona will be able to have an elective abortion, at least through the first 15 weeks of pregnancy.

If the court sides with Warner, then elective abortions at any stage of pregnancy would become illegal, the way they were prior to the 1973 Supreme Court ruling. But if they agree with Planned Parenthood Arizona and Attorney General Kris Mayes, they will leave intact the ruling of the Court of Appeals that says the newer law takes precedence.

But even if the majority of the justices side with Warner, Mayes said after the hearing that no doctor is going to get arrested, much less be prosecuted, while she is in office.

Mayes has taken the position — one not supported in any prior ruling of any Arizona court — that the right of abortion actually is protected under a provision of the state constitution that guarantees a right of privacy.

She also is acting under an executive order issued early this year by Gov. Katie Hobbs, also a supporter of abortion rights, which the governor says gives Mayes the sole authority to prosecute any abortion cases, stripping that authority from the 15 county attorneys to bring their own charges.

“And if they try, I will stand against them,” she said.

That authority, Mayes conceded, never has been litigated and likely would get a court fight.

Yavapai County Attorney Dennis McGrane already has interceded in this case on the side of abortion foes, saying he wants to represent “the interests of all people in his jurisdiction.” And what that means, said Warner, is to “fully enforce” the territorial-era law.

“We’ll see,” said Mayes.

“Let me put it this way: I hope we won’t see,” she continued. “I believe that there aren’t very many county attorneys chomping at the bit to prosecute for medical care,” even as she acknowledged McGrane’s position and called the position of Maricopa County Attorney Rachel Mitchell “clear as mud.”

“The law needs to be clarified,” added Pima County Attorney Laura Conover, a supporter of the 15-week law.

Much of the arguments by both sides Tuesday centered on that question of conflicting laws.

Justice Clint Bolick pointed out that, in enacting the 15-week law, legislators specifically said they were not repealing the territorial-era law — and they were not legalizing any procedure that was currently unlawful.

“What does that all mean?” he asked.

Andrew Gaona, representing Planned Parenthood Arizona, said he reads that to mean the new law did not affect any procedure that was illegal in 2022. So, for example, the 15-week law did not override another already existing law that makes it a crime for a doctor to perform an abortion on a woman knowing that the sole reason she wants it is the sex of the child or because of a fetal defect.

What it does not mean, Gaona told the justices, is that lawmakers were saying they wanted the territorial-era law to come back if Roe was overturned. He said if that were the case legislators could have written that into the measure, the way they did in other states that had “trigger” laws repealing newer abortion restrictions and automatically reinstating long-unenforced bans.

“If the Legislature’s intent was truly that (the territorial-era law) should be resurrected in full and enforceable as to all if Roe v. Wade were to ever be overturned by the U.S. Supreme Court, I don’t think it’s too much to ask the Legislature to state that clearly,” Gaona said.

And he told the justices there’s another reason to believe that the new law overrides the old one: the views of then-Gov. Doug Ducey who Gaona said was “no fan of abortion rights, we can all agree on that.”

Gaona cited an interview Ducey gave to Capitol Media Services in 2022, even before the Supreme Court overturned Roe, after he signed the 15-week law.

“The law of the land today in Arizona is the 15-weeks law,” Ducey said. And he said that “will remain law” regardless of the future of Roe.

Finally, Gaona told the justices they need to look at this from the perspective of a health regulation — the 15-week law — and not as a criminal matter.

“Abortion is health care,” he said. “And what that means is this court’s decision will have a profound impact on the ability of pregnant Arizonans to access that health care from PPAZ and other providers.”

Conover echoed that sentiment after the hearing.

“No one behind the bench or in front of the bench has a medical degree,” she said.

“And that’s the problem with all of this,” Conover said. “This is a public health issue and it’s a conversation between a provider and a patient that sometimes occur while the patient’s life is absolutely in danger right in the emergency room.”

Warner, by contrast, urged the justices to see it in a different light.

“For over 100 years, Arizona has fully protected life from the moment of conception,” he said.

“Roe temporarily stopped that protection,” Warner said. “But the Legislature never gave up,” he said, even reaffirming in the text of the 15-week enactment that it was not repealing the territorial-era law.

Conover said no matter what the court decides she believes the final word on this will come from voters who may have the chance in November to inscribe a specific right of abortion in the state constitution.

And Mayes, also a supporter of that ballot measure, said recent news underlines why there needs to be a constitutional amendment.

“We want to be certain that what transpired in Texas over the last several days never happens in Arizona,” she said. That refers to the decision of the Texas Supreme Court to deny the ability of a doctor there to perform an abortion on Kate Cox despite a fetal condition that could risk her future fertility if she doesn’t get the procedure. Cox eventually had to leave the state to terminate the pregnancy.

“What has happened in Texas is nothing short of egregious, disgusting and heartbreaking for Kate Cox, her family, and her doctor,” Mayes said.

The Supreme Court heard arguments Tuesday with just six justices after Justice William Montgomery said that ethical rules required him to recuse himself. That means if the court ties 3-3, that affirms the ruling of the Court of Appeals which upheld the 15-week law.