This morning, the Arizona Supreme Court heard arguments regarding the constitutionality of the state’s abortion laws. The court was presented with three options: (1) the 1864 law, which protects the unborn child in almost all cases; (2) the 2022 law, which allows abortion through the 15th week; or (3) a hybrid of the two.
Mary Kekatos explains the background
The [1864] law was blocked in 1972 after Planned Parenthood Center of Tucson, the predecessor of Planned Parenthood Arizona, sued, arguing it was a violation of the state and U.S. Constitution.
When Roe v. Wade was passed in 1973, it overrode the 1864 law, but that near-total ban was never taken off the books.
In December 2022, the Arizona Court of Appeals “harmonized” the two laws, writing in an opinion that the 1864 law would only apply to non-physicians and that doctors could follow the newer law.
In August of this year, the State Supreme Court agreed to consider a petition regarding the ruling. The court will decide whether the older or newer law, or a combination of the two, will be enforced.
When the case first began its course through the courts, Mark Brnovich, then the attorney general, provided unwavering support for the strongly pro-life law that protects unborn children unless the mother’s life is in imminent danger. Following the election of pro-abortion Katie Hobbs as governor, she issued an executive order that granted final authority to prosecute to her pro-abortion Attorney General Kris Mayes, rather than to county attorneys.
Dr. Eric Hazelrigg, the medical director of a group of Phoenix-area pregnancy help centers, has intervened in the proceedings as an intervenor. He has been joined by Yavapai County Attorney Dennis McGrane, according to Kekatos.
“Dr. Hazelrigg and Mr. McGrane are in this case to protect Arizona’s pro-life law that protects these most vulnerable among us,” said Jacob Warner, an attorney with the organization Alliance Defending Freedom, representing Hazelrigg and McGrane.
Warner said his clients want to see the old, near-total abortion ban enforced.
They argue the Court of Appeals overlooked a critical piece of the text of the 15-week law which makes direct reference to the older law.
“Lawmakers were clear. What they said was these Roe-era abortion regulations, they create no right to an abortion. And it doesn’t repeal the old pro-life law,” Warner said. “Once Roe goes away, what the Legislature has said is that the old law isn’t repealed, that Arizona should be able to fully protect life.”
Barbara Atwood, professor of law emerita at the University of Arizona James E. Rogers College of Law, posited that the justices may perceive merit in this argument.
“I believe the legal argument that may be persuasive to them is that the Court of Appeals was overly creative in its attempt to reconcile these laws,” Atwood said.
Republican Senate President Warren Peterson and House Majority Leader Ben Toma have filed their own amicus brief, in which they argue that the Legislature’s intent was to leave in place the more restrictive abortion law. This information was reported by Katherine Davis-Young. The brief’s introduction provides a succinct summary of the argument. (Internal citations omitted).
This case pivots on two uncontested propositions of law. First, in determining whether and under what circumstances abortions may be lawfully performed in Arizona, the judiciary must “give effect to legislative intent.” Second, the Legislature not only has never repealed [the 1864 law]—which for more than a century has prohibited any “person” from providing an abortion at any stage of pregnancy “unless it is necessary to save [the mother’s] life”—but explicitly disclaimed any intention of doing so.
The Court of Appeals and the Respondents maintain rhetorical fidelity to these premises, but their interpretive exertions deliver precisely the result they purportedly foreswear: an implied repeal of [the 1864 law] by an archipelago of provisions scattered throughout Title 36.
Chelsea Garcia is a political writer with a special interest in international relations and social issues. Events surrounding the war in Ukraine and the war in Israel are a major focus for political journalists. But as a former local reporter, she is also interested in national politics.
Chelsea Garcia studied media, communication and political science in Texas, USA, and learned the journalistic trade during an internship at a daily newspaper. In addition to her political writing, she is pursuing a master's degree in multimedia and writing at Texas.
