Arizona court uphold ban on 15-week abortions, shoots down separate law banning nearly all abortions

By Dave Andrusko

If you thought the status of abortion in Arizona was already mind-numbingly complicated, a decision Friday by the state Court of Appeals makes that seem like child’s play.

“An Arizona court has ruled that abortion doctors cannot be prosecuted under a pre-statehood law that criminalizes nearly all abortions yet was barred from being enforced for decades,” Jacques Billeaud of the Associated Press reported. “But the Arizona Court of Appeals on Friday declined to repeal the 1864 law,”

The Appeals Court panel wrote, “The question at the core of this appeal is whether a licensed physician who performs an elective abortion in conformity with more recent statutes in Title 36 is nevertheless subject to prosecution under §13 3603. Because Title 36 permits physicians to perform elective abortions under certain circumstances, the answer is no.”

As a result, while abortions in Arizona are banned after 15 weeks of pregnancy, “the state’s Civil War-era abortion ban doesn’t overrule nearly 50 years of laws tightly regulating abortions and instead only applies to non-physicians who might try to provide abortions,” Jim Small of Arizona Mirror reported.

“In a unanimous ruling, the three-judge appellate panel said that the arguments from Republican Attorney General Mark Brnovich, who urged the court to leave the near-total abortion ban in place, would ‘effectively render (state law’s) regulation of elective abortion all but meaningless because there would be no legal elective abortions.’”

Howard Fischer wrote, “The judges acknowledged that a law that dates to 1864 which makes abortion a crime except to save the life of the mother never was repealed, even after the U.S. Supreme Court ruled in 1973 in the landmark case of Roe v. Wade that women have a constitutional right to terminate a pregnancy until a fetus is viable, generally between 22 and 24 weeks.”

“But since 1973 legislators, unable to outlaw the practice, enacted a series of restrictions, ranging from where abortions can be performed and by whom to requirements for waiting periods and, in the case of minors, parental notification. In essence lawmakers said doctors can perform abortions as long as they follow those rules, the appellate judges said in Thursday’s ruling.

“And the court said it’s no different with the 15-week ban, even though it was approved last year in the belief that the Supreme Court would uphold a similar Mississippi law.”

The fact that the high court totally overturned the 1973 ruling and returned the power to the states to regulate abortion did not undo all those new laws, the judges said. And that, they said, means that doctors who follow those laws can’t be prosecuted under the old law.


In June, the Supreme Court, in Dobbs v. Jackson Women’s Health Organization, upheld Mississippi’s ban on abortion after 15 weeks, in the processing overturning Roe v. Wade. Before the High Court’s June 24 ruling, the Arizona legislature, anticipating the Court’s favorable decision, passed a nearly identical 15-week ban. Small wrote

Shortly after that hope was realized, Brnovich went to court to request the nullification of an injunction blocking the near-total ban that was first added to Arizona’s territorial statutes in 1864, then re-codified when Arizona became a state in 1912. That injunction was placed in 1973, after Roe was enshrined at the federal level.

The Arizona Court of Appeals took on the case after a trial judge in September removed a nearly 50-year-old injunction blocking the Civil War-era abortion ban, effectively reinstating it and threatening abortion providers across the state with 2 to 5 years in prison.

Planned Parenthood Arizona appealed that ruling, and judges heard arguments in the case last month.

Planned Parenthood runs four of the state’s nine abortion clinics. The core of its argument is that “decades of regulations passed since the 1973 injunction, including this year’s 15-week ban, muddled the legal landscape for doctors and implied that abortion, to some extent, was permitted.” Brnovich’s legal argument viewed the 1864 ban in isolation, the appellate court panel said.

“But we do not construe statutes in isolation,” Chief Judge Garye Vasquez wrote on behalf of the panel.

Arizona lawmakers have “created a complex regulatory scheme to achieve its intent to restrict — but not to eliminate — elective abortions” in Arizona,” Vasquez wrote. But Brnovich’s position “would eliminate the elective abortions.”

Incoming pro-abortion attorney general Kris Mayes said she will not appeal the decision upholding the 15 week ban. Billeaud of the Associated Press said Mayes “agreed with the ruling that doctors cannot be prosecuted for performing the procedure in the first 15 weeks of pregnancy and vowed ‘to continue to fight for reproductive freedom.’”

Incoming pro-abortion governor, Katie Hobbs, would go further. She wants to get rid of the 15-week law.

“The decision to have a child should rest solely between a woman and her doctor, not the government or politicians,” Hobbs said in a prepared statement after the ruling. And she said the 15-week law does the opposite.