PHOENIX — A judge has set a Nov. 3 trial in a bid by doctors to get a declaration the state’s territorial-era law outlawing virtually all abortions does not apply to them.
But the case could get complicated.
An attorney for anti-abortion Choices Pregnancy Centers and its medical director want the Maricopa County judge to allow him to intercede to oppose the doctors’ request. Kevin Theriot argues that Attorney General Mark Brnovich, who is defending state laws, does not “adequately represent (their) interests on behalf of unborn children in Arizona.’’
There was no immediate response from Brnovich. But Gail Deady, an attorney for the Center for Reproductive Rights, told the judge she opposes the move.
All this comes as the state Court of Appeals is weighing when it will consider a separate but similar claim by Planned Parenthood Arizona to declare that medical professionals are free to perform abortions through the 15th week of pregnancy.
A Pima County judge ruled last month that the territorial-era law, which allows abortions only to save the life of the mother, is the one that governs conduct in the state.
But the appellate judges said Judge Kellie Johnson also should have considered more recent laws, including the ban on abortion after 15 weeks of pregnancy that was enacted this year by the Arizona Legislature, and attempted to “harmonize’’ them.
More immediately, the appellate court stayed Johnson’s ruling, which had brought all abortions to a halt. That allowed the 15-week ban to take effect, at least for the time being, while the judges consider the issue.
While there are technical differences between the two court cases, there is a common thread.
Both the Arizona Medical Association and Planned Parenthood want a ruling to allow both the old law, which never was repealed, and the new one to coexist. By their way of thinking, that would mean doctors are governed by only the 15-week restriction while the near-outright ban, with its possible five-year prison term, would apply only to those without medical training.
The fact that these arguments are going forward on dual tracks virtually ensures it will take a final ruling from the Arizona Supreme Court to decide which law applies — and to whom — which could take months.
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More immediately, Maricopa County Superior Court Judge Joseph Mikitish needs to decide whether Choices Pregnancy Centers and Dr. Eric Hazelrigg will be able to defend their position that the territorial-era law is the only one that should apply, including to doctors, and abortion should once again be limited to situations where the life of the mother is at risk.
Theriot said the case should not be decided without their input.
“As an obstetrician, Dr. Hazelrigg is ideally situated to protect interests of unborn children,’’ Theriot told the judge in new legal filings. He said the organization where Hazelrigg works provides prenatal and post-birth services.
More to the point, Theriot said, there is no guarantee Brnovich will represent those interests.
“That the state may choose to exercise its legitimate interest in protecting unborn life does not mean that the state has chosen to adequately represent that interest in court,’’ he said. Theriot said Brnovich might not provide what he calls “critical evidence’’ and other legal arguments that are not available to the state in defending the territorial-era law.
“For example, Dr. Hazelrigg can provide evidence of the pain dismemberment abortions cause to unborn children at 15 weeks’ gestation and the advanced development of unborn children before 15 weeks’ gestation,’’ he said. “And Choices’ 39 years of experience providing support to unborn children and their mothers allows it to show how knowledge of the details of human development affect the way expectant mothers view their unborn children and protect the babies’ interests.’’
Conversely, Theriot said a ruling that doctors can terminate pregnancies through 15 weeks will adversely affect his clients.
“Choices will have to spend more resources assisting women suffering from post-abortion regret,’’ he told the judge.
Theriot also pointed out that 95% of abortions in Arizona in 2020 occurred at 15 weeks or sooner.
“So this court’s ruling may affect the vast majority of Arizona unborn children threatened by abortion if it grants (the doctors’) request and authorizes the elective destruction of human life in the first trimester,’’ he said.
Arizona appeals court blocks Tucson judge's near-ban on abortions
