Arizona cannot enforce a territorial-era law that outlaws all abortions except to save the life of the mother, the state Court of Appeals ruled late Friday.
In a unanimous decision, the three-judge panel rejected arguments by outgoing Republican Attorney General Mark Brnovich that a subsequent law approved this year, restricting the ability of doctors to perform abortions to the first 15 weeks of pregnancy, does not override the stricter law that already was on the books in 1973.
That year is when the U.S. Supreme Court, in Roe v. Wade, ruled that women have a constitutional right to terminate a pregnancy through the point of fetal viability, considered to be between 22 and 24 weeks. That ruling also barred states from enforcing anything more restrictive.
But Arizona lawmakers never repealed the old law. In fact, in enacting the 15-week ban earlier this year, the Republican-controlled Legislature specifically said it did not override that law. The legislators inserted that language in case the Supreme Court overturned Roe.
In June, the high court did overturn Roe, and Brnovich has been leading the legal effort to once again enforce the territorial-era law in Arizona.
But Planned Parenthood Arizona argued that the newer law, while approved in case the justices left Roe intact, effectively overrides the older one.
The organization is not alone. Even outgoing Republican Gov. Doug Ducey, who signed the 15-week ban, told Capitol Media Services he believes the new statute supersedes what was previously on the books.
Judge Gary Vasquez, writing for the appellate court, said the issue can be resolved — and the laws harmonized — by looking at the wording of both Arizona statutes.
“The statutes can be reconciled,’’ he wrote.
Vasquez acknowledged the old law makes it a crime to perform an abortion on a woman unless to save her life, and imposes a prison term of not less than two years nor more than five. But he rejected arguments by Brnovich that the Supreme Court decision to overturn Roe makes that the law of the land, regardless of what legislators enacted since 1973.
Specifically, Vasquez said the new law can be seen as a regulation on the practice of doctors. It’s no different, the judge said, than other laws approved over the years since 1973 that require things like informed consent of patients and parental permission in the case of an abortion on a minor.
Accepting Brnovich’s argument would mean the state is criminalizing conduct by doctors under one law that the Legislature has specifically authorized under another, he said.
There’s another problem with Brnovich’s argument that both laws are valid and enforceable, the judge said.
“If we adopted it, the resulting uncertainty for licensed physicians who provide abortion services would violate due process, which requires that the law must be sufficiently definite to avoid arbitrary enforcement,’’ Vasquez said. “Brnovich’s interpretation would not only merely invite arbitrary enforcement, it would practically demand it.’’
Nor were the appellate judges convinced this could be overcome by the fact prosecutors have discretion whether and how to charge those who violate criminal statutes.
“Under this interpretation, physicians performing elective abortions would not know if the conduct would be criminally prosecuted under (the territorial-era law) or if they could avoid criminal liability by complying with (the health code, where the restrictions like the 15-week ban are located),’’ Vasquez wrote. “Even if a specific county attorney and attorney general had publicly promised they would not charge physicians under (the territorial-era law), a physician would still be at risk considering the statute of limitations for felonies in Arizona exceeds the term of elected county attorneys and the attorney general.’’
Friday’s ruling does not repeal the old law. It remains in effect, along with its penalties, for anyone other than a medical professional who performs an abortion.
Nothing will change immediately with Friday’s decision. An interim ruling by the appellate judges has allowed abortions to continue through 15 weeks while the case was being argued.
It ultimately will be up to the Arizona Supreme Court to issue a final ruling.
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