Law firm asks Arizona Supreme Court to outlaw abortions

An anti-abortion law firm is asking the Arizona Supreme Court to reverse a lower court ruling and once again make virtually all abortions illegal in Arizona.

In new legal filings, the Alliance Defending Freedom contends judges on the state Court of Appeals got it wrong when they said a territorial-era law outlawing the procedure does not apply to doctors. The judges said a 2022 law enacted by legislators supersedes that older law and effectively gives licensed physicians the right to terminate a pregnancy, with the woman’s consent, through the 15th week of pregnancy.

But the challengers argue it was never the intent of the Legislature, in approving the 2022 law, to override the older statute. They want the state’s high court to say the law of the land in Arizona is that an abortion may be done only to save the life of the mother.

The justices are inheriting a complex issue.

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, generally considered to be between 22 and 24 weeks.

The ruling overrode the territorial-era law, precluding its enforcement in Arizona. But state legislators never repealed the old statute.

What changed was the U.S. Supreme Court’s decision last year to review a Mississippi law to ban abortions after 15 weeks. Anticipating a favorable decision, abortion foes in Arizona enacted and Republican Gov. Doug Ducey signed legislation mirroring Mississippi’s to have it ready to enforce here.

But the Supreme Court went further, overturning its own 1973 precedent and leaving it up to each state to decide which restrictions or outright bans they want to place on abortions. Abortion foes here argued that decision returned the law to the way it was before Roe, pointing out that the original Arizona law, while unenforceable since 1973, remains on the books.

Based on that, Republican Mark Brnovich, the state attorney general at the time, got Pima County Superior Court Judge Kellie Johnson to rule that the old law was once again valid, halting abortions in Arizona.

The Court of Appeals disagreed, agreeing with Planned Parenthood Arizona that the 2022 law prohibiting doctors from performing an abortion after 15 weeks supersedes the old law. That sets the stage for Arizona Supreme Court review.

New AG sides with Planned Parenthood

But the legal playing field is different now.

Voters in November elected Democrat Kris Mayes as attorney general, and she is siding with Planned Parenthood.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

In fact, Mayes contends a provision in the Arizona Constitution guaranteeing a right of privacy allows for 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 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.

Exhibit 1 for those challengers is the 2022 law itself. It spells out that the 15-week restriction does not repeal the territorial-era law “or any other applicable state law regulating or restricting abortion.’’

That should have been the end of the debate, they said, calling it the clear intent of people who elected the lawmakers “to fully protect life.’’ Instead, challengers say, the appellate judges resolved a “manufactured conflict’’ with the new law by partly repealing the old one.

“But Arizona law is clear: No one may perform an abortion except to save the mother’s life,’’ the challengers told the justices in urging them to override the appellate court ruling. They pointed out that the old, unrepealed law makes it illegal for any “person’’ to perform an abortion, saying that term is defined broadly as “a human being.’’

“Physicians are human beings,’’ meaning the old law applies to them, they said. “Indeed, physicians were prosecuted for violating prior versions of (that law) before it was enjoined.’’

They also contend there is no inherent conflict between the old law and the new one, saying both criminalize abortion, though one does so only after 15 weeks.

It isn’t just Planned Parenthood and Mayes who believe the newer law takes precedent.

After signing the 15-week ban, Ducey said 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,’’ he said. Ducey said the fact lawmakers never repealed the old law, which was enforceable until 1973, is irrelevant. The law signed in 2022 “supersedes 1973,” he said.

The justices have not decided whether they will review the appellate court decision.