Judges grill Arizona prosecutor on claims abortions are illegal

Judges grilled a state attorney over his claim a territorial-era law banning most abortions once again makes the practice a crime despite a new law permitting doctors to terminate a pregnancy through the 15th week.

Hanging in the balance is whether abortions will remain legal in Arizona.

At a court hearing Wednesday in Tucson, Assistant Attorney General Michael Catlett pointed out that lawmakers never repealed the statute dating back to 1864, which prohibits abortions except to save the life of the mother, even after the U.S. Supreme Court ruled in 1973 that women had a constitutional right to terminate a pregnancy. That law carries a potential five-year prison term.

Now, with 1973’s Roe v. Wade ruling overturned in June, Catlett told the judges that old law is back in effect.

But the appellate judges pointed out that lawmakers, in the years since 1973 — unable to ban the procedure — approved a series of restrictions on how and when abortions could be performed. Most recently those included SB 1164, which specifically allows doctors to perform abortions through 15 weeks.

Catlett argued lawmakers enacted the new law earlier this year, before the Supreme Court’s ruling, just in case the high court, considering a nearly identical 15-week law from Mississippi, didn’t fully overturn Roe. He pointed out SB 1164 specifically said it was not repealing the territorial-era law.

Now that the Supreme Court did void Roe, Catlett said, the old law governs.

The judges, however, pointed out that Arizona lawmakers never enacted a “trigger’’ provision — as some other states did — saying any post-Roe abortion regulations are automatically repealed. That means SB 1164 remains on the books, a point Catlett conceded.

That clearly bothered Judge Peter Swann, who said it creates a difficult situation for a doctor faced with performing an abortion.

The doctor could say “ ‘prosecutor(s) could decide that they want to apply (the territorial-era law) and the 15-week law doesn’t protect me,’ “ Swann said. “’Or they might decide the 15-week law applies and charge me with a case they know they’re going to lose because I performed an abortion at 10 weeks.’’

Catlett, however, argued there was nothing wrong with lawmakers leaving the 15-week law intact even while suspecting Roe was likely to be overturned. He said it could apply if a doctor performs an abortion at 18 weeks, leaving it up to prosecutors which law to apply.

He insisted that, any way you read it, abortions at any time except to save the life of the mother are illegal.

Judge Peter Eckerstrom said he also has a problem with two statutes on the books, one allowing abortions up through 15 weeks and the other a nearly outright ban.

“The physicians and the people of Arizona are going to be pretty unclear about what is lawful conduct and what is not lawful conduct,’’ Eckerstrom said.

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Catlett, however, maintained his position that state legislators, in approving SB 1164, never intended to make any form of abortion lawful.

Attorney Sarah Mac Dougall, arguing for Planned Parenthood Arizona, said there is a simple way to resolve the issue without the court having to declare one statute or the other illegal.

Put simply, she told the judges, they need to look at SB 1164 as a set of restrictions on the practice of medicine of how and when doctors can terminate a pregnancy. Under that law, Mac Dougall said, those who are medically trained and legally entitled to perform abortions can do so up through 15 weeks while also following other post-Roe laws such as waiting periods and informing women of their options.

And the territorial-era law? Mac Dougall said that can apply to anyone who is not a medical professional.

That, however, was not the way Pima County Superior Court Judge Kellie Johnson ruled earlier this year. She agreed with Attorney General Mark Brnovich that the new Supreme Court ruling overturning Roe allowed the state to once again start enforcing the territorial-era law.

That order brought all abortions in Arizona to a halt.

In October, however, the Court of Appeals blocked that order being carried out until its judges could consider arguments. Even then, the appellate judges suggested they thought Johnson had erred.

Eckerstrom said at the time there was a “substantial likelihood’’ Planned Parenthood would succeed with its claim that Johnson should have considered all the laws regulating — but not outlawing — abortions that legislators have approved since 1973. Those specifically include the 15-week law.

“Arizona courts have a responsibility to attempt to harmonize this state’s relevant statutes,’’ Eckerstrom wrote at the time.

In agreeing to once again allow abortions at least while the legal issues are debated, the judge also said then that the “balance of hardships’’ — a factor courts consider when weighing whether to stay an order — weighs strongly on the side of Planned Parenthood and against Brnovich. Eckerstrom said there is an “acute need of health-care providers, prosecuting agencies, and the public for legal clarity as to the application of our criminal laws.’’

Brittany Fonteno, president of Planned Parenthood of Arizona, acknowledged at the time that the interim order is just a temporary victory unless and until there is a final ruling on whether prosecutors can bring charges against anyone who performs an abortion at any time during pregnancy. And no matter what the appellate court rules, that is unlikely to come for awhile, as whomever loses is likely to seek review by the Arizona Supreme Court.

Nothing in either the old or new law allows women who have an abortion to be prosecuted. A statute that made getting an abortion a crime was repealed in 2021.

The judges did not indicate Wednesday when they might rule.