The Arizona Supreme Court decided Wednesday it will consider whether Arizona law prohibits virtually all abortions.
In a brief order, the justices said they will hear arguments from abortion foes that the U.S. Supreme Court’s 2022 decision overturning Roe v. Wade, which had guaranteed a constitutional right of abortion, automatically reinstated Arizona’s territorial-era law that makes it illegal to terminate a pregnancy except to save the mother’s life.
That could pave the way for the state’s high court ultimately to void a decision last year by the Arizona Court of Appeals that a more recent state law allows abortions to be performed legally through the first 15 weeks of pregnancy.
The justices’ decision to review the lower court ruling doesn’t necessarily mean they will overturn it. But just the fact the court is willing to consider the possibility the territorial-era law would be reinstated was enough to alarm abortion rights advocates.
“This archaic abortion ban the intervenors are trying to revive is cruel, harmful, and unpopular with a majority of Arizonans,’’ said Kelly Dupps, senior director of public policy and government relations for Planned Parenthood Arizona, in a prepared statement. “It has no place dictating our reproductive freedom and how we live our lives today.’’
If nothing else, though, the possibility that women in Arizona could find themselves without the right to abortion pretty much for the first time since 1973 could add fuel to a recently announced initiative seeking to enshrine the right to abortion in the state constitution. If that drive is successful, it would trump whatever the justices ultimately decide.
But even if supporters gather the necessary 383,943 valid signatures by July 3, 2024 to put the issue to voters, it would not be on the ballot until Nov. 5, 2024 — months after the Arizona Supreme Court will hear arguments and render a decision.
Conflicting laws, rulings
Abortions except to save the life of the mother were illegal in Arizona until the U.S. Supreme Court ruled in 1973 that women had a constitutional right to terminate a pregnancy prior to fetal viability, which is generally considered to be between 22 and 24 weeks.
That overrode the territorial-era law, precluding its enforcement in Arizona. But state legislators never repealed the statute and it remains on the books.
When the U.S. high court decided last year to review a Mississippi law that sought to ban abortions after 15 weeks, Republican state lawmakers in Arizona — anticipating a favorable decision — enacted and then-Gov. Doug Ducey signed mirror legislation to have it ready to enforce here.
But the Supreme Court actually went further, overturning its own 1973 precedent and leaving it up to each state to decide what restrictions or outright bans they want to place on abortions. Abortion opponents here now contend that automatically returned the law to the way it was before Roe.
That was the argument advanced by Republican Mark Brnovich, who was Arizona attorney general last year. He got Pima County Superior Court Judge Kellie Johnson to rule the old law was once again valid. Legal abortions came to a halt in Arizona.
The Court of Appeals disagreed, however, agreeing with Planned Parenthood Arizona that the 2022 law prohibiting doctors from performing an abortion after 15 weeks supersedes the old law. Legal abortions resumed in that stage of pregnancy.
Changing political scene
All that sets the stage for the Supreme Court review.
But the legal playing field is different now.
Voters in November elected Democrat Kris Mayes as attorney general. She is siding with Planned Parenthood in the dispute.
In fact, Mayes contends a provision in the Arizona Constitution guaranteeing a right of privacy allows abortions in more circumstances. That issue, however, is not currently before the state Supreme Court.
Having Mayes support the position that abortions are legal in Arizona through 15 weeks leaves Dr. Eric Hazelrigg, whom the court had appointed to represent the interests of unborn children, as the sole defender of the argument that the old law is enforceable and virtually all abortions are illegal. He is represented by the Scottsdale-based Alliance Defending Freedom.
The biggest argument the abortion foes have is the language of the 15-week ban. It spelled out that the 15-week restriction did not repeal the territorial-era law “or any other applicable state law regulating or restricting abortion.’’
Abortion opponents say that should have been the end of the debate, because they say it was the clear intent of people who elected the lawmakers “to fully protect life.’’ Instead, the opponents say, the appellate judges created and resolved a “manufactured conflict’’ with the new law by partly repealing the old one.
It isn’t just Planned Parenthood and Mayes who say the newer law takes precedence.
After signing the 15-week ban in 2022, Ducey told Capitol Media Services he believed it would preclude the state from once again enforcing the territorial-era law.
“The law of the land today in Arizona is the 15 weeks law,’’ said Ducey, a Republican. He said the fact lawmakers never repealed the old law that was enforceable until 1973 is irrelevant.
“This law was signed this year,’’ he said. “I think that the law you signed in 2022 supersedes 1973.’’
County prosecutor to get say
Further complicating the legal issue is that the justices, in agreeing Wednesday to review the issue, also granted a request by Yavapai County Attorney Dennis McGrane to intervene in the case.
Jacob Warner, an attorney with Alliance Defending Freedom — the same group representing Hazelrigg — told the justices McGrane has a special interest that needs to be represented.
Warner said Hazelrigg, medical director of the anti-abortion Crisis Pregnancy Center, represents the interests of unborn children.
By contrast, he said, McGrane wants to represent “the interests of all people in his jurisdiction.’’ That means to “fully enforce’’ the territorial-era law, Warner said.
Denise Harle, senior counsel at Alliance Defending Freedom, said in a prepared statement the justices should allow the old law to take effect to “protect the lives of countless innocent unborn children.’’
“Arizona women deserve the dignity and respect that comes from receiving life-affirming health care and support, not the abortion industry’s false choice between doing what’s best for the mother and protecting the life of her child,’’ she said.
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