Brnovich: Arizona prosecutors can pick between two abortion laws

Arizona Republican Attorney General Mark Brnovich says there's nothing legally wrong with having two different statutes on the books outlawing abortion because prosecutors can choose which one to enforce.

Or whether to enforce neither.

Hanging in the balance, however, is the possibility that doctors who say they are following one law could still be sent to prison if a prosecutor decides to bring charges based on the other and gets a conviction.

Brnovich is trying to convince the Arizona Court of Appeals to rethink its conclusion that a trial judge has to "harmonize'' a law going back to 1864, which pretty much outlaws the procedure, with a new statute that allows abortions through the 15th week of pregnancy. Attorneys from Planned Parenthood Arizona are arguing that can be done by reading the new law as applying to doctors, while keeping the territorial-era law only for those who are not medical professionals.

Brnovich, in a 70-page legal filing, called that argument ridiculous.

He pointed out the old law makes it a crime for a "person'' to perform an abortion except to save the life of the mother. Violators face a mandatory penalty of between two and five years in state prison.

That law was effectively placed on hold by the 1973 U.S. Supreme Court ruling in Roe v. Wade, which declared that women have a constitutional right to terminate a pregnancy until a fetus is viable, considered between 22 and 24 weeks.

In June, however, the justices overturned their precedent, saying states are again free to enact their own abortion restrictions.

Brnovich said that reactivated the old law, which never was repealed. He then got a trial judge to dissolve a state-issued injunction against its enforcement that was enacted after the original Roe decision.

All that, he argued, returns the law to what it was — including who could be punished. He said doctors clearly are "persons'' under state law.

"When the statute was enforced prior to the 1973 injunction, licensed physicians were not excluded from prosecution,'' he told the appellate court.

It is true, Brnovich acknowledged, that state lawmakers, acting this year before the Supreme Court overturned Roe, enacted the 15-week ban. But he said that does not permit the appellate judges to conclude the new law effectively exempts doctors from punishment under the old law.

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"It is well-settled that the Legislature defines crimes and their elements, and courts may neither add nor subtract elements to those definitions,'' the attorney general said.

And with the same conduct covered by two different laws, with different penalties, "Local prosecutors have independent discretion to choose which statute to enforce,'' Brnovich argued. "Regardless of which statute a local prosecutor chooses to enforce, that choice does not mean the other abortion statutes conflict.''

"If a licensed physician performs an abortion at a time during pregnancy when more than one criminal statute applies, then the decision whether to prosecute and what statute or statutes to apply belongs to the prosecutor,'' he continued. "Such prosecutorial discretion — even when a local prosecutor chooses the statute with a harsher penalty — does not render statutes left unenforced superfluous.''

Brnovich said that since lawmakers enacted the new law and did not repeal the old one, the Legislature did not intend one of them to be the exclusive means to punish such conduct.

His legal position about the two laws — and both being enforceable — conflicts with that of Republican Gov. Doug Ducey. After signing the 15-week ban, Ducey said he believes the new law supersedes the old one.

Under either law, there is no risk of prosecution to a woman getting the procedure. Legislators repealed that statute in 2021.

Brnovich acknowledged that prosecutors' discretion goes beyond picking which law to use when bringing charges for performing an abortion. It also means they could decide, for whatever reason, not to bring charges at all, even if there is a violation of one or both laws.

But he said doctors cannot legally demand that they be subject only to the 15-week ban and be exempted from prosecution under the older one.

"Unless the physician can establish that the county attorney's choice among statutes discriminated against a particular class of defendants, there is no violation of due process in granting such prosecutorial discretion,'' Brnovich said.

The judges will hear arguments at the end of the month.