Near-total abortion ban possible as Arizona Supreme Court considers state's laws

By Katherine Davis-Young
Published: Monday, December 11, 2023 - 4:49am
Updated: Monday, December 11, 2023 - 11:37am

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When the U.S. Supreme Court last year returned abortion regulating power to states, Arizona had two, seemingly conflicting, abortion laws on the books. One, passed just a few months before Roe v. Wade was overturned in 2022, outlaws abortions after 15 weeks. The other, which dates back to 1864, bans abortions in almost all cases.

Abortion providers didn’t know which to follow.

“It was a very dark time to be a physician,” said Dr. Jill Gibson, medical director for Planned Parenthood Arizona, the state’s largest abortion provider.

As state courts have grappled with the legal chaos, Planned Parenthood Arizona has been made to cancel appointments and send patients seeking abortions to other states, only to then reopen short-staffed and with a new set of rules.

But for almost a year now, Gibson said, she’s had some clarity. The Arizona Court of Appeals last December decided to “harmonize” the state’s conflicting abortion laws. Judges said the 1864 near-total ban should continue to apply, but only for non-physicians. Doctors, on the other hand, could follow the newer law and could provide abortions up to 15 weeks.

This week, the state Supreme Court will reconsider that ruling.

Listen to KJZZ reporter Katherine Davis-Young talk about the case with Lauren Gilger on The Show

Gibson said she is frustrated to be faced with legal uncertainty once again.

“That was decided and we're comfortable with that interpretation and I think we all have been able to move forward past that point,” Gibson said. “We just feel like this is a baseless attempt to bring ideology back into a personal decision between a patient and their provider.”

In earlier phases of this case, it was Arizona’s then-attorney general, Republican Mark Brnovich, pushing for courts to reinstate the older, more restrictive law. But during the legal back-and-forth, there was an election. And the new attorney general, Democrat Kris Mayes, is no longer pursuing the case.

Hobbs abortion petition
Katherine Davis-Young/KJZZ
Gov. Katie Hobbs on Nov. 28, 2023 adds her signature to a petition to get an abortion rights measure on Arizona ballots in 2024.

Instead, Dr. Eric Hazelrigg, medical director of a group of Phoenix-area anti-abortion pregnancy centers, has stepped in as an intervenor. He’s joined by Yavapai County Attorney Dennis McGrane.

“Dr. Hazelrigg and Mr. McGrane are in this case to protect Arizona’s pro-life law that protects these most vulnerable among us,” said Jacob Warner, an attorney with the organization Alliance Defending Freedom, representing Hazelrigg and McGrane.

Warner said his clients want to see the old, near-total abortion ban enforced.

They argue the Court of Appeals overlooked a critical piece of the text of the 15-week law which makes direct reference to the older law.

“Lawmakers were clear. What they said was these Roe-era abortion regulations, they create no right to an abortion. And it doesn’t repeal the old pro-life law,” Warner said. "Once Roe goes away, what the Legislature has said is that the old law isn’t repealed, that Arizona should be able to fully protect life." 

Justices may see a point there, said Barbara Atwood, professor of law emerita with the University of Arizona James E. Rogers College of Law.

“I think the legal argument that might be persuasive to them is that the Court of Appeals was too creative in its effort to harmonize these laws,” Atwood said.

Attorneys for Planned Parenthood Arizona declined to provide an interview for this story, but in court documents, they argue this case really isn’t about whether abortion should be legal, but what the state should do when two statutes conflict. And Atwood said justices might agree that the lower court’s interpretation, allowing doctors to follow the 15-week law, was right.

“The justices may in their personal lives be very anti-abortion, but vote to affirm what the Court of Appeals did because they agree with that statutory method,” Atwood said.

And the justices — all appointed by Republican governors — are known to be conservative, Atwood said. Justice Bill Montgomery, who has made public statements accusing Planned Parenthood of “genocide,” has recused himself from the case.

If the six remaining justices were to decide abortions are illegal in the state except in life-saving circumstances, there is still a question of enforcement.

Chris Love Arizona for Abortion Access
Katherine Davis-Young/KJZZ
Chris Love, senior adviser to Arizona for Abortion Access, speaks at an event to launch a signature-gathering campaign for a 2024 abortion rights ballot initiative.

Democratic Attorney General Kris Mayes would not comment on the pending case, but she has said she would not prosecute doctors for performing abortions. And Democratic Governor Katie Hobbs has issued an executive order to give Mayes — not county attorneys — the final say when it comes to abortion.

Atwood said that move could lead to more legal challenges.

“I think that that’s an unresolved issue,” Atwood said.

Atwood said a separate political battle could play out if the justices were to decide it’s not their job, but that of the Legislature to sort out Arizona’s conflicting abortion laws.

“That also, of course, is going to be a messy situation, since we've got a Legislature in an executive branch that are at odds,” Atwood said.

Hobbs has vowed to veto any anti-abortion legislation that lawmakers should send to her desk. She also submitted an amicus brief in the state Supreme Court case supporting Planned Parenthood Arizona, arguing that the health and wellbeing of Arizonans is at stake.

Meanwhile, Republican Senate President Warren Peterson and and House Majority Leader Ben Toma have filed their own amicus brief arguing the Legislature’s intent was to leave in place the more restrictive abortion law.

Whatever the Court decides, Atwood points out, abortion advocates are already pursuing a 2024 ballot measure that would expand abortion access far beyond either of the laws being considered.

“I don't know that that will be in the back of any justice's minds when they're thinking about this case, but it's certainly a part of the picture,” Atwood said.

So, the Supreme Court will have the final say in this case. But Atwood said legal conflicts over abortion in Arizona are likely far from over.

Oral arguments in the case are set for Tuesday. It’s not clear when the justices will give their decision.

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abortion clinic
Katherine Davis-Young/KJZZ
An abortion clinic in Tempe.

Gov. Doug Ducey and Cathi Herrod
Howard Fischer/Capitol Media Services
Gov. Doug Ducey in 2015, shortly after being elected, speaking to members of the anti-abortion Center for Arizona Policy at the Capitol. With him is CAP President Cathi Herrod.
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