By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The Arizona Supreme Court will hear arguments Tuesday about whether Arizona women will lose virtually all their rights to terminate a pregnancy.

Attorneys for the anti-abortion Alliance Defending Freedom want the justices to overturn an appellate court ruling that concluded a 2022 law allowing doctors to perform the procedure through the 15th week of pregnancy overrules a territorial-era law that outlaws abortion except to save the life of the mother.

Their main argument is Arizona lawmakers never repealed that law, even when the U.S. Supreme Court decided in the 1973 ruling of Roe v. Wade that women have a constitutional right to terminate a pregnancy.

The nation’s high court overturned that precedent last year in a case called Dobbs v. Jackson Women’s Health, returning the question of abortion to each state. What that means, the abortion foes argue, is the law that was in effect in 1973 that makes performing an abortion a felony is once again enforceable.

That, however, was not the conclusion of the state Court of Appeals. The judges there sided with Planned Parenthood Arizona and Pima County Attorney Laura Conover, deciding the 2022 law can be “harmonized” with the never-repealed older ban.

Whatever the justices eventually decide — there is virtually no chance they will rule from the bench — will define the rights of Arizona women going forward.

But it remains unclear even if the court upholds the pre-1973 law whether any doctors would be prosecuted in the near future.

That’s because Gov. Katie Hobbs issued an executive order stripping the state’s 15 county attorneys from handling abortion cases.

Instead, she gave that authority to Attorney General Kris Mayes. And Mayes has said she will never prosecute a doctor for performing an abortion.

The case also is unusual in that it will be heard by only six of the seven justices.

Planned Parenthood had sought to have Justice William Montgomery recuse himself based on statements he had made about the organization prior to being named to the bench in 2019 by then-Gov. Doug Ducey.

He initially refused, saying nothing he said while Maricopa County attorney could affect his ability to decide the case fairly.

Montgomery reversed himself late last month, saying he sees an issue in the Code of Judicial Conduct that would require him to step aside. He did not explain.

At that point Chief Justice Robert Brutinel could have tapped a retired justice or an active judge from the state Court of Appeals to fill out the bench. But Brutinel decided against that, giving no reason.

While it is impossible to handicap how the other justices would vote, that decision could aid Planned Parenthood.

Under normal circumstances, it would need the votes of four of the seven justices to uphold the appellate court ruling. But with just six, Planned Parenthood need just three votes, as a tie means the lower court ruling stands.

The outcome of the case also could have ripple effects in November.

Planned Parenthood and other groups are gathering signatures in hopes of putting a measure on the 2024 ballot to enshrine the right to abortion in the Arizona Constitution.

A decision by the court to keep abortions legal through 15 weeks could reduce support for a more expansive law: Out of 13,896 abortions performed in Arizona in 2021 — the most recent data available — just 824 were on women who were more than 15 weeks pregnant.

Conversely, a decision by the court to return Arizona to the pre-1973 days, when abortions could occur only to save the life of the mother, with no exceptions for rape or incest, could spur support for such a measure.

The idea the 15-week law supersedes the older law also has drawn support from Ducey.

He was the one who signed that law in 2022, before the Supreme Court ruled in the Dobbs case.

The premise behind that law was that the justices would simply uphold a Mississippi statute with a 15-week ban. The 2022 Arizona law was designed to have a nearly identical law in place in Arizona, where, until the Dobbs decision, abortions could be performed until the point of fetal viability, generally considered between 22 and 24 weeks.

Ducey, in signing that law, acknowledged it contained language spelling out that Arizona was not repealing the territorial-era law. But he insisted abortions would not become illegal here even if the U.S. Supreme Court eventually did what it did — overturn Roe.

“The law of the land today in Arizona is the 15 weeks’ law,” he said in an interview at the time with Capitol Media Services. “And that will remain law.”

And Ducey said it was irrelevant that the pre-1973 law never was repealed and remained on the books.

“This law was signed this year,” he said. “I think that the law you sign in 2022 supersedes 1973.”

Less clear is how any ruling on this dispute between the two laws will have on another one that lawmakers approved and Ducey signed in 2021.

It makes it illegal for doctors to perform an abortion if they know the sole reason a woman wants to terminate the pregnancy is because of a fetal genetic defect. U.S. District Court Judge Douglas Rayes upheld that law in the wake of the U.S. Supreme Court overturning Roe, saying that eliminated the constitutional right of doctors to perform abortions and the right of patients to receive them.

But the 9th Circuit Court of Appeals said the doctors have an interest in not being penalized for what they believe is a vague law and sent the case back Rayes where it now stands.