PHOENIX — It makes no sense to reinstate the territorial-era abortion ban for a few weeks because there’s no chance any doctor who is arrested will ever face a final conviction, Attorney General Kris Mayes says in a new court filing.
Mayes’ office pointed out in the filing to the Arizona Supreme Court that state lawmakers approved HB 2677 last week, repealing the 1864 statute that outlaws abortion except to save the life of the mother. When that happens, said Assistant Attorney General Joshua Bendor on Mayes’ behalf, the law in Arizona will allow a pregnancy to be terminated up to 15 weeks.
Bendor acknowledged it is not known exactly when that repeal will take effect. That’s because the repeal, like most state laws, will take effect 91 days after the current legislative session ends. And, at this point, the session could run into June.
The timing problem is that the state’s high court concluded on April 9 that the territorial-era law supersedes the more recently enacted 15-week limit. Now, the only question is when the court issues its “mandate” to enforce that ruling, once again making most abortions illegal.
Mayes wants that delayed, at least in part to let her decide whether to seek U.S. Supreme Court review.
But even if that were not the case, Bendor said, a delay is appropriate. And the key, he said, is timing.
Consider, he told the justices, what would happen if a doctor is charged with violating the territorial-era law once they issue their mandate.
Bendor said any criminal prosecution is likely to take time. And he said even in the unlikely possibility there could be a trial and a conviction before the repeal takes effect, that would not be the end: Any doctor, facing a minimum two-year prison term, is likely to appeal.
“Thus, any prosecution under (the old law) which has not received final judgment when HB 2677 becomes effective may require dismissal,” he wrote. “And given the short timeframe involved, it is difficult to imagine any case could become final before HB 2677 takes effect.”
And that, said Bendor, should mean that the charges will go away — eventually.
“When a criminal statute is repealed, courts impute a legislative intent to avoid inflicting punishment at a time when it can no longer further any legislative purpose,” he told the court.
All this comes as Jacob Warner, attorney with the Alliance Defending Freedom is asking the justices to issue the mandate.
Warner’s organization represents Dr. Eric Hazelrigg. He is the medical director of the Crisis Pregnancy Center, which does not offer abortions or abortion referrals, who was appointed by courts to represent the interests of unborn children. And he acknowledged that, given the legislative vote to repeal the old law, it would be reinstated for just a small amount of time.
But in his own legal filings, Warner said that’s irrelevant. He said anything that prevents any number of abortions is worthwhile, and the justices should allow it to take effect for whatever period that means.
That is a real possibility. Planned Parenthood Arizona has warned of a “blackout,” saying doctors won’t risk criminal charges if the court issues its mandate before the repeal is effective.
Warner said there might be justification to delay a mandate if legislative supporters of repeal got the necessary two-thirds vote that would have allowed the measure to take effect immediately.
They did not, he told the court. And Warner said that shows there isn’t the support for immediate repeal.
But Andrew Gaona, attorney for Planned Parenthood Arizona, told the justices that doesn’t legally mean anything and should not be a factor they consider.
“Just because the Legislature did not enact H.B. 2677 as an emergency measure doesn’t mean that it wanted (the territorial-era law) to be enforceable for a temporary period,’’ he wrote in his own legal filing. “Not only is that interpretation absurd, but it also contravenes the principle that legislative silence is not an expression of legislative intent.”
And there’s something else.
Gaona said the Arizona Supreme Court itself set a legal precedent in 1968, declaring that when the interests of justices outweigh the interests of finally bringing litigation to an end, the court should stay its mandate.
“Taking this simple step reflects clear legislative intent, longstanding equitable principles, and other appellate decisions across the country,” he said. “This court should thus stay the issuance of its mandate until HB 2677’s effective date.”
The whole situation stems from the fact that Arizona lawmakers never repealed the 1864 law even after the U.S. Supreme Court ruled in 1973 that women have a constitutional right to terminate a pregnancy.
In 2022, legislators here adopted a 15-week limit in anticipation that the U.S. Supreme Court would uphold a similar Mississippi law.
Instead, the justices overturned 1973 precedent, leaving the issue to each state. And then-Attorney General Mark Brnovich got a judge to rule that allowed the never-repealed territorial-era law to once again be enforced.
That brought abortions to a halt for about a week before the state Court of Appeals interceded, concluding the 15-week law was enforceable. But the Arizona Supreme Court concluded the older law trumped the newer one.
The Legislature repealed the old law — but with no firm date on when that will take place. And that leaves only the question of when the court here will issue its mandate and what will happen between that date and when the repeal is effective.
The justices have not said when they will rule on the request for a delay.
