Arizona Court Ruling On Abortion Law: A judge in Arizona has ruled that abortion providers cannot be charged under a pre-statehood law that criminalizes almost all abortions but was not allowed into effect for decades.
The 1864 statute, which imposes a punishment of two to five years in prison for anybody who assists in abortion and has no exceptions for rape or incest, was not repealed by the Arizona Court of Appeals on Friday.
Although non-doctors are still liable to charges under the previous legislation, the court ruled that doctors cannot be prosecuted for providing abortions since other Arizona laws passed over the years permit them to practice.
According to other abortion laws, “the statutes, viewed together, make clear that physicians are entitled to perform abortions,” the appeals court wrote.
The 1973 Roe v. Wade ruling by the U.S. Supreme Court granting women a constitutional right to an abortion prevented the pre-statehood statute, which only permits abortions if a patient’s life is in danger, from being put into effect.
Attorney General Mark Brnovich, however, requested a state judge to permit the law’s implementation after the Supreme Court reversed the historic ruling in June.
The Arizona Court of Appeals stated that it was not examining the pre-statehood legislation in a manner that separated it from other state abortion laws, adding that “the legislature has devised a complicated regulatory framework to fulfill its goal to restrict — but not to eliminate — elective abortions.”
Planned Parenthood Arizona’s president and chief executive, Brittany Fonteno, said in a statement that the ruling upholds the state’s ban on abortions beyond 15 weeks of pregnancy.
Today is a good day; let me say that clearly, stated Fonteno. “The Arizona Court of Appeals has provided us with the certainty that Planned Parenthood Arizona has been seeking for months: Abortion through 15 weeks will remain legal when performed by licensed physicians per Arizona’s other laws and regulations.”
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The attorney general’s position undermines the Legislature’s intent to regulate abortions but not outlaw them, and it violates due process by encouraging arbitrary enforcement, according to the appeals court, which rejected Brnovich’s argument that doctors might be charged under the pre-statehood provision.
The appeals court stated that Brnovich’s interpretation “would not only encourage arbitrary enforcement, but it would also nearly necessitate it.”
Requests for comment on the decision, announced late Friday afternoon, were not immediately answered by the attorney general’s office.
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After Roe was overturned, abortion clinics in the state ceased offering the operation; they resumed in the middle of July after a “personhood” statute guaranteeing legal rights to unborn children was thwarted by a court, and they halted again when a Tucson judge permitted the 1864 law to be put into effect.
The leading abortion provider in the state, Planned Parenthood Arizona, resumed abortion care when Brnovich’s office agreed in a subsequent legal dispute not to implement the previous ban at least until the following year.
The Arizona Medical Association and a Phoenix doctor who owns an abortion clinic filed a separate lawsuit to challenge the territorial-era rule, contending that laws passed after the Roe decision should take precedence and that abortions should be permitted up to 15 weeks into a pregnancy.
Brnovich attempted to put that lawsuit on hold pending the Court of Appeals outcome of the Planned Parenthood decision. He agreed to postpone enforcing the old statute for at least 45 days after the initial case’s verdict in an arrangement with the abortion doctor and the medical association.
The Roe decision, which the U.S. Supreme Court overturned in June, customarily permitted abortions up to 24 weeks into a pregnancy. This year, the Legislature passed a bill restricting abortions to 15 weeks into a pregnancy.
Bans became effective in several areas once the Roe decision was reversed and the decision to allow abortion was left up to the states.
In 13 states—Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin—abortion is prohibited at all stages of pregnancy, with few exceptions.
Bans in Arizona, Montana, North Dakota, Ohio, South Carolina, Utah, and Wyoming are also not in effect while the courts are determining the legality of their enforcement.
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