Arizona’s 1864 abortion ban doesn’t overrule 50 years of more recent regulations

Abortions in Arizona are legal up to 15 weeks of pregnancy, after an appeals court ruled late Friday that the state’s Civil War-era abortion ban doesn’t overrule nearly 50 years of laws tightly regulating abortions and instead only applies to non-physicians who might try to provide abortions.

In a unanimous ruling, the three-judge appellate panel said that the arguments from Republican Attorney General Mark Brnovich, who urged the court to leave the near-total abortion ban in place, would “effectively render (state law’s) regulation of elective abortion all but meaningless because there would be no legal elective abortions.” 

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“Let me be crystal clear that today is a good day. 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,” said Brittany Fonteno, president and CEO of Planned Parenthood Arizona.

In June of this year, the newly conservative U.S. Supreme Court struck down the constitutional right to abortion protected in Roe v. Wade when it ruled in Dobbs v. Jackson Women’s Health Organization. The case determined that a 15-week abortion ban passed in Mississippi — while federal laws at the time prohibited bans before 24 weeks — was perfectly legal because nothing in the Constitution protected a woman’s right to an abortion. 

During that time, the GOP-controlled state legislature in Arizona passed a nearly identical 15-week ban of their own, in the hopes that the high court would rule in favor of Mississippi. 

Shortly after that hope was realized, Brnovich went to court to request the nullification of an injunction blocking the near-total ban that was first added to Arizona’s territorial statutes in 1864, then re-codified when Arizona became a state in 1912. That injunction was placed in 1973, after Roe was enshrined at the federal level.

The Arizona Court of Appeals took on the case after a trial judge in September removed a nearly 50-year-old injunction blocking the Civil War-era abortion ban, effectively reinstating it and threatening abortion providers across the state with 2 to 5 years in prison.

Planned Parenthood Arizona appealed that ruling, and judges heard arguments in the case last month.

Planned Parenthood of Arizona, the state’s largest abortion provider, running four of the state’s nine clinics offering the service, fought against Brnovich’s request. The core of Planned Parenthood’s argument is that decades of regulations passed since the 1973 injunction, including this year’s 15-week ban, muddled the legal landscape for doctors and implied that abortion, to some extent, was permitted

The appellate panel agreed, and said Brnovich’s legal argument viewed the 1864 ban in isolation.

“But we do not construe statutes in isolation,” Chief Judge Garye Vasquez wrote on behalf of the panel.

The reality is that Arizona lawmakers have “created a complex regulatory scheme to achieve its intent to restrict — but not to eliminate — elective abortions” in Arizona. Brnovich’s position “would eliminate the elective abortions the legislature merely intended to regulate.”

And Brnovich’s position that prosecutors could use their discretion to not enforce the 1864 ban “would not merely invite arbitrary enforcement, it would practically demand it.” And even then, doctors would be left in an uncertain environment, as statutes of limitations extend beyond the terms of prosecutors. So even if a particular prosecutor pledged not to enforce that law, the next one might — and would be able to retroactively charge doctors with crimes.

Beyond that, the court noted that the state legislature’s 15-week ban that was enacted this year explicitly said that it was not intended to repeal — directly or implicitly — the 1864 law or any other laws governing abortion in Arizona. 

“It would be nonsensical to do what Brnovich urges: to nullify, as a practical matter, the very legislation that contains the non-repeal clause in favor of the older, non-repealed statute,” Judge Peter Eckerstrom wrote in a concurring opinion.

Gov.-elect Katie Hobbs said the court was wrong to uphold the 15-week abortion ban, which she called “restrictive,” “backwards” and said would have “deadly consequences” because it includes no exceptions for rape or incest.

“In November, the people of Arizona made clear that they believe in women’s fundamental rights. As governor, I will do everything in my power to ensure that women can exercise their constitutional rights, and will continue to fight to restore reproductive freedom in our state,” she said in a written statement.

Cathi Herrod, president of the pro-life Center for Arizona Policy, pledged to continue to fight for the 1864 law.

“I am confident Arizona’s pre-Roe law limiting abortion to cases where the mother’s life is at risk will be upheld by Arizona’s Supreme Court,” she said in a written statement.

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