If Mississippi's 15-week abortion ban is upheld, AZ potentially has conflicting laws on record

By Greg Hahne
Howard Fischer/Capitol Media Services
Published: Monday, April 25, 2022 - 10:28am
Updated: Wednesday, June 15, 2022 - 12:46pm
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Gov. Doug Ducey is insisting that all abortions will not become illegal in Arizona even if the U.S. Supreme Court overturns the historic Roe v. Wade decision.

In an interview with Capitol Media Services, the governor said that he believes the law he signed earlier this year outlawing abortion after 15 weeks takes precedence over a statute that has been on the books since before the 1973 ruling.

That law makes it a crime for anyone who performs an abortion at any time at all during pregnancy. And it even outlaws providing a woman with drugs or any other method of terminating a pregnancy, with no exceptions except to save the life of the mother.

The statute was never repealed after the Supreme Court ruling that concluded women have a constitutional right to abortion, at least prior to a fetus becoming viable. That generally occurs somewhere around 22 to 24 weeks of pregnancy.

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The law Ducey signed last month outlaws abortions after 15 weeks. While it is not enforceable now as it runs afoul of Roe v. Wade, it built on the contingency that the Supreme Court will uphold a nearly identical Mississippi law.

But it also is possible that the justices may go farther, voiding Roe v. Wade entirely. And that could allow Arizona to enforce the pre-1973 law that remains on the books.

Ducey, however, told Capitol Media Services that will not happen in Arizona.

"The law of the land today in Arizona is the 15-weeks' law," he said. "And that will remain law," he said, regardless of whether the justices simply uphold the Mississippi law or overturn Roe v. Wade entirely.

The governor does not dispute that the old pre-1973 law remains never was repealed. But he said that's irrelevant and that the new 15-week ban takes precedence — and becomes the only enforceable law.

"This law was signed this year," Ducey said. "I think that the law that you signed in 2022 supersedes 1973."

That, however, is not the interpretation of Sen. Nancy Barto (R-Phoenix) the sponsor of SB 1164 which became the new law.

"The 15-week ban does not replace the underlying law," she told Capitol Media Services. "It makes it clear that the complete ban would go into effect if Roe is overturned."

And Barto said that should be obvious to Ducey.

She pointed out that the bill sent to the governor — which he signed — actually spells out that approval of the 15-week ban "does not repeal, by implication or otherwise, 13-3603 (the pre-1973 anti-abortion law), or any other applicable state law regulating or restricting abortion."

"That shouldn't be news to the governor's office," Barto said, saying his interpretation is "not how the new law reads."

Ducey, however, is not backing down. Press aide C.J. Karamargin said that the language in the new law is not what will decide the issue.

"Intent matters here," he said. "And we're confident that the new laws will take precedence and prevail."

But Karamargin sidestepped repeated questions of whether it always was the intent of his boss, in signing the new law, to override the pre-1973 statute and keep abortions legal in Arizona for the first 15 weeks, regardless of whatever the U.S. Supreme Court decides. Instead, he said, Ducey approved it because "he believes it's good policy."

It isn't just Barto who believes that Ducey is misreading the law that he signed.

That's also the position of Cathi Herrod. She is the president of the Center for Arizona Policy which crafted the legislation.

She said a lot depends on what the Supreme Court decides in its ruling on the Mississippi law that is expected by the end of June.

If the justices simply uphold that law and do no more, then that clears the way for Arizona to begin enforcing its own 15-week ban. But Herrod, who is an attorney, said the situation is different if the justices decide to reverse and repeal Roe v. Wade and its constitutional right of women to terminate a pregnancy regardless of state law.

"If Roe is overturned, our contention would be that abortion is not legal in Arizona because of the pre-Roe law," she told Capitol Media Services.

But Murphy Bannerman, spokeswoman for Planned Parenthood Arizona, said it may not be as clear as Barto and Herrod contend. And some of that, she said, is because the anti-abortion statute actually goes back to territorial days.

"There's an argument that the (pre-1973) law shouldn't stand because it was before we were a state," Bannerman said. She said it ultimately could be up to a court to decide whether the old law is automatically resurrected, whether it can be resurrected with legislative action, or whether it becomes a legal nullity.

The issue goes beyond whether Arizona could enforce its outright ban.

Last year lawmakers approved and Ducey signed a separate measure that makes it a crime for medical professional to terminate a fetus at any stage of pregnancy if they know that the reason the woman is seeking the procedure solely because of a genetic defect. That law, which has no exception even if the fetus is not viable outside the womb, carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.

But U.S. District Court Judge Douglas Rayes barred the state from enforcing the law.

He said it imposes an undue burden on women, making it contrary to federal court rulings. And that, he said, outweighs any interest the state claims in promoting life.

Attorney General Mark Brnovich had no luck asking the 9th Circuit Court of Appeals to set aside the injunction.

So Brnovich asked the U.S. Supreme Court to intercede, filing a 38-page legal brief with Justice Elena Kagan. She is the justice that handles emergency appeals from the 9th Circuit.

Kagan, however, has yet to respond to the request, leaving the 2021 law unenforceable for now.

If Roe is overturned, however, that could pave the way for the state to implement the law.

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