Abortion in Arizona: 15-week ban now state law after Court of Appeals ruling

An Arizona court has ruled that abortion doctors cannot be prosecuted under a pre-statehood law that criminalizes nearly all abortions yet was barred from being enforced for decades.

But the Arizona Court of Appeals on Friday declined to repeal the 1864 law, which carries a sentence of two to five years in prison for anyone who assists in an abortion and provides no exceptions for rape or incest.

Still, the court said doctors can’t be prosecuted for performing abortions in the first 15 weeks of pregnancy because other Arizona laws passed over the years allow them to perform the procedure, though non-doctors are still subject to be charged under the old law.

Previously, there had been two abortion laws on the books. The near-total ban on abortion passed before Arizona became a state has been overruled. The 15-week ban signed in 2022 by Arizona Governor Doug Ducey will now take effect.

The court harmonized both laws and ruled doctors cannot be prosecuted under the pre-statehood ban, but could face punishment for violating the 15-week ban.

"The statutes, read together, make clear that physicians are permitted to perform abortions as regulated" by other abortion laws, the appeals court wrote.

The pre-statehood law, which allows abortions only if a patient’s life is in jeopardy, had been blocked from being enforced shortly after the U.S. Supreme Court issued its 1973 Roe v. Wade decision guaranteeing women a constitutional right to an abortion.

After the Supreme Court overturned Roe v. Wade in June, Arizona Attorney General Mark Brnovich asked a court to enforce the pre-statehood ban. Planned Parenthood fought the pre-statehood ban in court.

In the court's opinion, written by Chief Judge Vasquez, "Under this construction, our contemporary statutes permit physicians to perform elective abortions up to fifteen weeks but only in conformity with a host of exacting regulations. Our original law continues to outlaw abortions under all circumstances not permitted by that subsequent legislation. This construction results in a coherent and easily applied statutory scheme. It is the only construction that comports with the legislature’s direction that each of the statutes regulating abortion continue to have force and effect.

"In sum, I join fully with the majority’s reasoning because it best complies with our legislature’s express instructions that we give all existing abortion regulations vitality: that we impliedly repeal no provision, old or new. It also executes our legislature’s expectation that, to the extent its express instructions do not settle all disputes in construction, we will conduct the obligatory harmonization process in conformity with our settled canons for doing so. By this process, we show our strictest fidelity to legislative intent."

The Arizona Court of Appeals said it wasn’t viewing the pre-statehood law in isolation of other state abortion laws, explaining that "the legislature has created a complex regulatory scheme to achieve its intent to restrict — but not to eliminate — elective abortions."

Read the Arizona Court of Appeals, Division Two opinion: https://www.appeals2.az.gov/Decisions/CV20220116Opinion.pdf

The appeals court rejected Brnovich’s claim that doctors could be prosecuted under the pre-statehood law, saying the attorney general’s argument ignores the Legislature’s intent to regulate but not eliminate abortions and violates due process by promoting arbitrary enforcement.

"Brnovich’s interpretation would not merely invite arbitrary enforcement, it would practically demand it," the appeals court wrote.

In a statement, Brittany Fonteno, president and chief executive of Planned Parenthood Arizona, said the decision means a state law limiting abortions to 15 weeks into a pregnancy will remain in place.

"Let me be crystal clear that today is a good day," Fonteno said. "The Arizona Court of Appeals has given us the clarity that Planned Parenthood Arizona has been seeking for months: When provided by licensed physicians in compliance with Arizona’s other laws and regulations, abortion through 15 weeks will remain legal."

Arizona Attorney General-elect Kris Mayes has said she will not prosecute women or doctors over abortions.

In a tweet, Mayes, a supporter of abortion rights, said she agreed with the ruling that doctors cannot be prosecuted for performing the procedure in the first 15 weeks of pregnancy and vowed "to continue to fight for reproductive freedom."

In September, Maricopa County Attorney Rachel Mitchell said she will not prosecute women, but did not say anything about providers.

On a Newsmaker Saturday segment in October, FOX 10's John Hook asked Mitchell, "So you would follow the law, whatever it ends up being?" 

She replied, "I would follow the law."

Hook followed up with, "Do you have prosecutorial discretion on whether you would pursue it?" 

Mitchell stated, "Absolutely. I think any case that comes in the door I use discretion on every day of my life and that is to review the case and say is this worth prosecuting, is it worth prosecutorial resources, does it have a reasonable likelihood of conviction? And of course you have to take into account community attitudes because you have to get a unanimous jury."

Our earlier report is below:

Arizona's Court of Appeals has heard oral arguments in the continued legal battle against Arizona’s near-total abortion ban that dates back at least a century.

Read More: Here's what to know about ARS 13-3603

Arizona is in a state of legal confusion when it comes to abortion laws, as there are two conflicting laws - between the near-total ban and a 15-week ban that was signed into law by Gov. Doug Ducey in 2022.

The lawsuit was filed by Planned Parenthood of Arizona against the state, and as the court weighs the dueling abortion laws on the books, they referred to this as a 'question of statutory interpretation.'

"They’re playing with women, and they’re playing with their rights," said Dr. Ronald Yunis with Acacia Women’s Center, an abortion clinic in Phoenix. "They’re playing with their fears, and this is just more of that. I think even the judge is right now allowing this to be sent to the appellate court and then that sent back, it’s all games they’re playing."

Acacia Women’s Center is still performing abortions, since an appellate court temporarily overrode a Pima County judge’s ruling to reinstate the near total ban. Arizona has seen a back and forth, in terms of abortion laws, since the U.S. Supreme Court overturned the Roe v. Wade ruling in June.

"It’s made my job more difficult, because with less providers, we are inundated with phone calls and request for visits, and we try to help everybody," said Dr. Yunis. "We work six days a week. We’re trying to help everybody we can."

Opponents of abortion also spoke out about the current state of affairs in regards to abortion in Arizona.

"At Center for Arizona Policy, we support both mothers and their unborn children, and we look forward to a day in Arizona we are abortion is not the choice that women are making," said Cathi Herrod, President of the Center for Arizona Policy.

Herrod says both the Arizona Attorney General’s Office and Planned Parenthood argued their points well, but she hopes the appellate court will rule with the intent of the Arizona State Legislature.

"The U.S. Supreme Court has clearly said that the decision on abortion law is up to the people to its elected representatives. That means the legislature, not the courts," said Herrod.

A decision could come down quickly, or take months. Many are also expecting this to go up to the Arizona Supreme Court before Arizonans have a final decision on which abortion law will be permanent in the state.