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Arizona Supreme Court Weighs Near-Total Abortion Ban

A representative for Arizona’s “unborn infants” says the state should enforce a Civil War-era ban on almost all abortions. Planned Parenthood says a newer, 15-week abortion ban should be the law instead. The Republican-stacked Arizona Supreme Court will decide.

This photo is a close-up of Arizona Supreme Court Chief Justice Robert Brutinel. He is wearing a dark suit.
Arizona Supreme Court Chief Justice Robert M. BrutinelGage Skidmore / Flickr

The Arizona Supreme Court will soon decide whether to allow abortions up to 15 weeks of pregnancy—or ban the medical procedure almost entirely. On Tuesday, attorneys for Planned Parenthood of Arizona and an anti-abortion pregnancy center made their cases before a panel of six judges as part of a decades-long lawsuit Planned Parenthood filed to protect healthcare access in the state.

The case, which could open the door for people to be prosecuted for their pregnancy outcomes, centers around two competing abortion restrictions currently on the books in Arizona. One law passed last year bans abortions after 15 weeks. The other bans almost all abortions and has existed in the state code since 1864. However, that law had been previously blocked by Roe v. Wade, the former U.S. Supreme Court ruling guaranteeing the right to the medical procedure. Since the nation’s highest court overturned Roe in June 2022, the state’s seemingly contradictory abortion restrictions have been the subject of several legal battles

On Tuesday, Andy Gaona, an attorney representing Planned Parenthood of Arizona, argued that the 1864 near-total abortion ban and 2022’s 15-week abortion ban conflict with each other. Thus, he said, the most recent law should apply.

Jacob Warner, an attorney for the Alliance Defending Freedom, an anti-abortion group, appeared in court to represent Yavapai County Attorney Dennis McGrane and Dr. Eric Hazelrigg, the medical director of an anti-abortion pregnancy center whom the court has admitted as an “intervenor” on behalf of “all Arizona unborn infants.” Warner argued that the bans do not conflict and that both can be in effect.

Judges seemed skeptical of Warner’s interpretation. Justice Ann Timmer, for example, noted that the 1864 ban and the 2022 ban mandate different criminal penalties for the same actions, such as abortions at 17 weeks.

The court is expected to issue a decision in the coming months.

The U.S. Supreme Court’s decision to overturn Roe set off a series of court battles in states across the country, with anti-abortion advocates fighting to make the healthcare procedure illegal in as many places as possible. Fourteen states now ban abortion almost entirely. Since Roe fell, police have arrested women in at least three states for having stillbirths or allegedly ending their pregnancies. Lawmakers in Idaho enacted legislation imposing criminal and civil penalties on people who help pregnant children get abortions in other states. Legislators in at least seven states have introduced bills seeking to classify abortion as homicide, punishable by the death penalty.

In Arizona, the state’s former attorney general falsely claimed the fall of Roe triggered the immediate reinstatement of the centuries-old, near-total abortion ban, which mandates two to five years in prison for people who provide abortions. In reality, a court injunction prevented the 1864 ban from going into effect. But the former attorney general’s claims—shared widely by local and national reporters—caused chaos and confusion and led many abortion providers in the state to temporarily stop administering the healthcare procedure.

In September 2022, a judge lifted the injunction, banning all abortions—even in cases of rape or incest—except to save the life of the pregnant person. The American Civil Liberties Union of Arizona and Planned Parenthood of Arizona challenged that decision. In December 2022, the state’s Court of Appeals ruled that the Civil War-era ban did not supersede decades of more recent abortion legislation. The unanimous ruling allowed abortions that comply with the 15-week abortion ban to resume.

In January, Kris Mayes, a pro-choice Democrat, took over for Republican Attorney General Mark Brnovich and stopped pursuing the office’s case against Planned Parenthood. However, in March, Hazelrigg, whom a Pima County judge in 2022 appointed to represent Arizona’s “unborn infants” in this case, filed a motion asking the Arizona Supreme Court to review the Appeals Court decision.

The Arizona Supreme Court is comprised of seven judges, all appointed by Republican governors. But only six heard the arguments on Tuesday. Before the hearing, Justice Bill Montgomery recused himself from the case after social media posts he made in 2017 resurfaced. Screenshots published in 2019 by the Phoenix New Times show that Montgomery—then the top prosecutor for Arizona’s most populous county—said he believes Planned Parenthood is “responsible for the greatest generational genocide known to man.”If the remaining six justices reach a 3-3 decision, the Appeals Court decision allowing abortions up to 15 weeks will remain in effect.

Even if the judges rule in favor of the 1864 ban, the law might not ban abortion for very long. Reproductive rights groups are currently gathering signatures for a ballot initiative that could allow voters to enshrine the right to abortion in the state constitution. The Arizona Abortion Access Act must collect nearly 400,000 valid signatures from Arizona voters by July 2024 to get on the ballot next November.

Should judges choose to allow a healthcare ban created at a time when women did not have the right to vote to go into effect, it’s unclear how exactly the law would be enforced. In June, Arizona Gov. Katie Hobbs issued an executive order prohibiting county attorneys from prosecuting abortions. The rule instead transfers the power to prosecute abortions to Attorney General Mayes.

The move earned the ire of Republican county attorneys. Maricopa County Attorney Rachel Mitchell, who heads one of the largest prosecuting agencies in the country, called the order “outrageous” earlier this year and said she intends to ignore the order.

At the courthouse in Phoenix on Tuesday, Planned Parenthood contended that if the Legislature intended for the 1864 ban to take effect if Roe fell, lawmakers would have included language in the newer, 15-week ban that said so.

The state Court of Appeals previously agreed with this argument, noting that when lawmakers wrote the 15-week ban, they “conspicuously avoided” stating the 1864 ban supersedes other laws.

“Abortion is healthcare,” Gaona, Planned Parenthood’s attorney, said in his closing remarks. “I’m not sure that anyone has ever said those words in this courtroom before.”