Arizona Supreme Court hears case that could decide future of legal abortion in state

Lawyers on both sides of oral arguments before the Arizona Supreme Court agreed two laws restricting abortions that were passed more than 150 years apart can coexist.

The main question now is whether the laws will work together to create a near-total ban on abortion, or if the practice will be legal up to 15 weeks of pregnancy.

The court’s decision is likely to have far-reaching consequences on Arizona elections next year ― especially for a potential ballot measure that would legalize abortion with few restrictions.

Six justices heard arguments for more than an hour, launching questions at the lawyers in a courtroom filled to capacity with observers and activists on both sides of the abortion issue.

The heart of the argument in Planned Parenthood of Arizona v. Hazelrigg/Mayes is what Republican lawmakers intended when they passed the 15-week law, which was signed last year by former Gov. Doug Ducey.

Chief Justice Robert M. Brutinel suggested they intended to match Mississippi law’s 15-week ban that makes elective abortion legal.

“That’s why they passed it,” he said.

Attorney Jake Warner responded that legislators intended to overlay the 15-week law on top of the older ban first crafted in 1864. Warner is senior counsel for Alliance Defending Freedom, a conservative group providing legal services for abortion foes, including legislative leaders.

Brutinel said he was trying to make the point that legislators hoped for a ruling by the U.S. Supreme Court over the Mississippi law in Dobbs vs. Jackson Women’s Health Organization that would restrict abortions to 15 weeks.

When the nation’s high court completely overturned Roe v. Wade, leaving each state to decide its abortion policy, Brutinel said lawmakers “got more than they asked for."

Vice Chief Justice Ann A. Scott Timmer said the state Legislature “could have made it a little clearer for all of us that if Roe v. Wade was overruled” the 1864 law would go into effect. And if that’s not what they meant, she suggested, lawmakers could try to make that happen in their upcoming session.

However, chances for such a change at this point are minimal with Democratic Gov. Katie Hobbs in office.

Lawyers argue about how measures work together

Yet Warner’s contention is that the 15-week law was designed to give further protections to an unborn child by further restricting the ability of a woman and her doctor to decide to abort.

Under the 15-week law, physicians would be guilty of a felony for performing an abortion after 15 weeks, unless the surgery was needed immediately to prevent a mother's death.

But the 15-week law included a provision that it did not repeal the pre-statehood law, which mandates at least two years in prison for anyone providing or helping to provide an abortion.

The older law states an abortion could be performed if "it is necessary" to save the mother's life.

Warner said that was a key distinction.

Justice Clint Bolick appeared skeptical of that line of argument. If Roe v. Wade had not been overturned while the 15-week law was upheld, doctors couldn’t be prosecuted, he noted.

“So I don’t understand how that law is not in conflict with the territorial ban," he said.

“These laws can be read together,” Warner said. “I don’t believe there’s a conflict.”

He continued: “After 15 weeks, the termination must be both lifesaving and immediately necessary.”

An example of a condition that doesn’t require an immediate abortion might be a patient with cancer that took as much as a “couple of months” to treat.

The priority would be to protect the unborn life, he said.

Andy Gaona, an attorney representing Planned Parenthood, said the 15-week law’s provision was not an “implied repeal.”

On the question of legislative intent, he noted that former Gov. Ducey, when asked which law would be in effect if Roe v. Wade were overturned, said the 15-week law would supersede the older law.

Solicitor General Josh Bendor, with the Arizona Attorney General's Office, told the justices that the 15-week law gives “express permission” for legal abortions.

“If the Legislature had intended to ban abortion in this state, we would've expected it to speak clearly,” he said.

How a territorial-era abortion ban is still on the books

Arizona’s strict ban on providing abortions is still on the books. The state recodified the law in 1901 and again in 1913, keeping the same provisions in slightly streamlined language.

Planned Parenthood of Tucson, the predecessor to the current Planned Parenthood of Arizona, sued the state in the early 1970s. It won an initial victory until the state Court of Appeals ruled against the group. In 1973, the United States Supreme Court made its groundbreaking Roe V. Wade decision, forcing the Arizona court to issue a stay on the old ban.

That stay remained in effect until last year, when a more conservative U.S. Supreme Court overturned the Roe protections most Americans had come to think of as settled law. States were suddenly allowed to set their own abortion laws. Abortion advocates sued, or rather, continued the 1970s fight, to shoot down the old law.

Abortion clinics across the state temporarily closed their doors after a Pima County Superior Court ruled that the 1864 law was in effect. But parties in the case, including Planned Parenthood and former Republican Attorney General Mark Brnovich, agreed the law wouldn’t be enforced until the case was settled. Abortion clinics resumed their services after the deal. A December ruling by the state Court of Appeals that the old law could be made to coexist with newer laws.

The state Supreme Court decided to accept the case for review in August, setting the stage for Tuesday’s oral arguments.

The text of the 15-week ban, passed on Republican Party lines and signed by Ducey, says it doesn’t repeal the older ban or any other law allowing “unlawful” abortions. The state repealed the prohibition against women seeking abortions in 2021. The 15-week law has an exception to save a mother's life, but no exception for cases of rape or incest.

Arizona lawmakers over the years also passed many other laws that seem to codify legal abortions, such as measures demanding minors receive consent for abortions from parents, guardians or judges, and regulating the practice in myriad ways.

Lawyers for abortion advocates including Planned Parenthood take the position, as they did before the appellate court ruling in December, that these other laws can be “harmonized” with the 1864 law. That law could remain in effect, but only apply to non-physicians, according to the advocates.

The anti-abortion intervenors in the case who want to see the 1864 law revitalized include: Arizona physician Dr. Eric Hazelrigg, Yavapai County Attorney Dennis McGrane, Arizona Senate President Warren Petersen and state Speaker of the House Ben Toma.

After arguing before justices, attorneys make case to the media

One justice missed today's proceedings: Former Maricopa County Attorney Bill Montgomery recused himself from the case last week following a motion by Planned Parenthood of Arizona that he was too biased. The other justices ― two women and four men ― were all appointed by Republicans.

Representatives of Planned Parenthood and Alliance Defending Freedom addressed the news media after the proceedings on the steps of the Arizona State Courts building in downtown Phoenix. Each side was backed up by dozens of advocates holding posters expressing their views.

“We pray that unborn children will be protected under Arizona law, and that women and families receive real support in real health care,” said Arizona physician Dr. Eric Hazelrigg, who represents the anti-abortion side of the case.

Following his statements, Dr. Jill Gibson, the chief medical officer at Planned Parenthood Arizona, warned of “immediate and devastating” effects should Arizona’s pre-statehood abortion ban prevail.

“The court has the opportunity to refuse this bleak future,” Gibson said. “I am here today with hope that the court will side with the majority of Arizonans in rejecting this extreme, unpopular and egregious threat to reproductive health care.”

State Attorney General Kris Mayes said after the proceedings she was “very hopeful, especially based on what we heard today,” that the Supreme Court would agree with the state Court of Appeals.

“Arizonans deserve certainty when it comes to our reproductive health, including the right to have an abortion," Mayes said. “Our medical professionals deserve certainty, too. And as your attorney general, I won't ever stop fighting for our bodily autonomy and control over our own destinies. You have my word on that.”

She added that she would not enforce the 1864 law, even if the state Supreme Court found it constitutional.

Laura Conover, the Democratic Pima County attorney, said that confusion in the two laws should be remedied because it has led to a patchwork of access in counties.

“We cannot have confusion in the laws,” she said, noting abortions continued in southern Arizona as the case wound through courts but “little elsewhere in the rest of the state.”

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Republic reporters Stacey Barchenger and Stephanie Innes contributed to this article.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.

This article originally appeared on Arizona Republic: Arizona Supreme Court hears pivotal abortion case