Appellate judges grilled an assistant attorney general over his claim that a territorial-era law banning most abortions once again makes the practice a crime despite a new law specifically permitting doctors to terminate a pregnancy through the 15th week of pregnancy.
And hanging in the balance is whether abortions will remain legal in Arizona.
At a court hearing Wednesday, Assistant Attorney General Michael Catlett pointed out that lawmakers never repealed the statute dating back to 1864, which prohibits abortions except to save the life of the mother even after the U.S. Supreme Court ruled in 1973 that women have a constitutional right to terminate a pregnancy. That law carries a potential five-year prison term.
Now, with Roe v. Wade overturned in June, he told the judges that old law now is back in effect.
But the appellate judges pointed out that lawmakers, in the years since 1973 — and unable to ban the procedure — approved a series of restrictions on how and when abortions could be performed. Most recently that included SB1164, which specifically allows doctors to perform abortions through 15 weeks.
Catlett argued lawmakers did that just in case the Supreme Court, considering a nearly identical 15-week law from Mississippi, didn’t fully overturn Roe. And he pointed out SB1164 specifically said it was not repealing the territorial-era law.
Now that the Supreme Court did void Roe, Catlett said, the old law governs.
The judges, however, pointed out that Arizona lawmakers never enacted a “trigger” provision — something done by some other states — saying that any post-Roe abortion regulations are automatically repealed. And that means SB1164 remains on the books, a point Catlett conceded.
That clearly bothered Judge Peter Swann who said that creates a difficult situation for a doctor faced with performing an abortion.
“I can say a prosecutor could decide that they want to apply (the territorial-era law) and the 15-week law doesn’t protect me,” Swann said. “Or they might decide the 15-week law applies and charge me with a case they know they’re going to lose because I performed an abortion at 10 weeks.”
Catlett, however, argued there was nothing wrong with lawmakers leaving the 15-week law intact even suspecting that Roe was likely to be overturned. He said it could apply if a doctor performs an abortion at 18 weeks, leaving it up to prosecutors which law to apply.
But Catlett insisted that, any way you read it, abortions at any time except to save the life of the mother are illegal.
Judge Peter Eckerstrom said he also has a problem with two statutes on the books, one allowing abortions up through 15 weeks and the other a nearly outright ban.
“The physicians and the people of Arizona are going to be pretty unclear about what is lawful conduct and what is not lawful conduct,” he said.
Catlett, however, maintained his position that state legislators, in approving SB1164 never intended to make any form of abortion lawful.
Sarah Mac Dougall, arguing for Planned Parenthood Arizona, said there is a simple way to resolve the issue without the court having to declare one statute or the other illegal.
Put simply, she told the judges, they need to look at SB1164 as a set of restrictions on the practice of medicine of how and when doctors can terminate a pregnancy. Under that law, Mac Dougall said, those who are medically trained and legally entitled to perform abortions can do so up through 15 weeks while also following other post-Roe laws like waiting periods and informing women of their options.
And the territorial-era law? Mac Dougall said that can apply to anyone who is not a medical professional.
That, however, was not the way Pima County Superior Court Judge Kellie Johnson ruled earlier this year. She agreed with Attorney General Mark Brnovich that the new Supreme Court ruling overturning Roe allowed the state to once again start enforcing the territorial-era law.
That order brought all abortions in Arizona to a halt.
In October, however, the Court of Appeals blocked implementation of that order until they could consider arguments. But, even then, the appellate judges suggested they thought that Johnson had erred. Eckerstrom said at the time there was as “substantial likelihood” that Planned Parenthood would succeed with its claim that Johnson should have considered all the laws regulating — but not outlawing — abortions that legislators have approved since 1973. And that specifically includes that 15-week law.
“Arizona courts have a responsibility to attempt to harmonize this state’s relevant statutes,” Eckerstrom wrote at the time.
In agreeing to once again allow abortions at least while the legal issues are debated, the judge also said the “balance of hardships” — a factor courts consider when weighing whether to stay an order — weighs strongly on the side of Planned Parenthood and against Brnovich. Eckerstrom said there is an “acute need of healthcare providers, prosecuting agencies, and the public for legal clarity as to the application of our criminal laws.”
But even Brittany Fonteno, president of Planned Parenthood Arizona, acknowledged at the time that the interim order is just a temporary victory unless and until there is a final ruling on whether prosecutors can bring charges against anyone who performs an abortion at any time during pregnancy. And no matter what the appellate court rules, that is unlikely to come for a while, as whoever loses is likely to seek review by the Arizona Supreme Court.
Nothing in either the old or new law allows women who have an abortion to be prosecuted. A statute that made getting an abortion a crime was repealed in 2021.