The Arizona Supreme Court has agreed to hear and decide which of Arizona’s conflicting statutes about abortion care are the law of the land. Arizona has at least 2 competing statutes in the books. A law from 1864 and recoded in 1901 says that abortion care is illegal unless the procedure is needed to save the life of the mother.
ARS 13-3603. Definition; punishment A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.
A competing law from 2022, ARS 36-2322, states that abortion care is legal up to 15 weeks gestation, and beyond 15 weeks in a ‘medical emergency’.
ARS 36-2322 (B): B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.
The state supreme court said last week they’ll hear the case (Planned Parenthood v Brnovich). The court didn’t release a date for oral arguments, so it’s impossible to predict when an eventual ruling might come out. If the court rules that the 1864/1901 law applies, legal abortions would effectively end in Arizona “unless it is necessary to save her life”.
When the US Supreme Court’s Dobbs ruling came out, former Republican Arizona Attorney General Mark Brnovich was able to convince a Pima County Superior Court judge to lift a 1973 injunction stopping implementation of Arizona’s territorial-era law outlawing abortion, and for a few months, abortions were illegal in Arizona beginning on September 24, 2022.
Planned Parenthood appealed that ruling, and in December 2022, a 3-judge panel of the Arizona Court of Appeals overturned the Pima County court ruling, saying that 2022 law limiting abortions to less than 15 weeks gestation and the 1864/1901 law could be “harmonized”… legalizing abortion care up to 15 weeks again… which is where it stands today.
Expect a main component of the arguments to focus on the session law that accompanied the passage of 2022’ SB1161 (the 15-week law) which stated in the legislative intent section that: This act does not:
“… Repeal, by implication or otherwise, section 13-3603 (the territorial era ban), Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.”
Expect the Alliance Defending Freedom (the group now representing Arizona’s 1964 law) to argue that the language above makes it clear the Legislature and Governor Ducey intended the 1864/1901 abortion to come back into effect if Roe were to be overturned, which of course it was.
Until the AZ Supreme Court makes its ruling, abortion care will likely remain legal up to 15 weeks gestation.
Planned Parenthood and other stakeholders have launched a plan to place an amendment in Arizona’s Constitution that would legalize abortion care up to the point of viability (about 24 weeks). See: Advocates to pass a ballot measure legalizing abortion in 2024.
That measure would require 383,923 valid signatures by July 2024 to make the ballot, will need to survive legal challenges to keep it off the ballot. If it survives that, voters will need to approve it by 50% plus one vote.
See: Reproductive-Rights-in-Arizona-1884-2022
Arizona Supreme Court to decide whether to reinstate 1864 abortion ban (azcentral.com)
Ray Stern Arizona Republic
