Arizona Supreme Court hears arguments over what is the status of abortion law in the state

By Dave Andrusko

The Arizona Supreme Court heard arguments this morning over which law governs abortion in their state: an 1864 law that protects unborn children in almost all cases, a 2022 law that allows abortion through the 15the week, or some hybrid.

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 working its way through the courts, Mark Brnovich, then the attorney general, solidly backed the strongly pro-life law which protects unborn children unless the mother’s life is jeopardized. After pro-abortion Katie Hobbs was elected governor, she issued an executive order that gave to her pro-abortion Attorney General Kris Mayes —not county attorneys—the final say on whether to prosecute.

Dr. Eric Hazelrigg, medical director of a group of Phoenix-area pregnancy help centers, “has stepped in as an intervenor. He’s 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 “Once Roe goes away, what the Legislature has said is that the old law isn’t repealed, that Arizona should be able to fully protect life.”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 with the University of Arizona James E. Rogers College of Law, said the justices may see a point there.

“I think the legal argument that might be persuasive to them is that the Court of Appeals was too creative in its effort to harmonize these laws,” Atwood said.

Republican Senate President Warren Peterson and House Majority Leader Ben Toma “have filed their own amicus brief arguing the Legislature’s intent was to leave in place the more restrictive abortion law,” Katherine Davis-Young reported. The brief’s introduction nicely summarizes 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.