Arizona’s legal battle over abortion likely far from over

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The incoming attorney general says she won’t appeal a ruling that doctors in Arizona can perform abortions through the 15th week of pregnancy.

But that may not end the legal battle as there are others who can keep the case alive.

And regardless of what happens, Arizona’s new governor wants state lawmakers to repeal not just the territorial-era law that made virtually all abortions illegal but even the one that the state Court of Appeals just said is now the law of the land.

All this comes on the heels of the appellate court ruling Friday saying the two laws can coexist.

The judges acknowledged that a law that dates to 1864 which makes abortion a crime except to save the life of the mother never was repealed, even after the U.S. Supreme Court ruled in 1973 in the landmark case of Roe v. Wade that women have a constitutional right to terminate a pregnancy until a fetus is viable, generally between 22 and 24 weeks.

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Democrat Kris Mayes smiles prior to a televised debate on Sept. 28 against Republican Abe Hamadeh ahead of the race for attorney general.  (AP Photo/Ross D. Franklin)

But since 1973 legislators, unable to outlaw the practice, enacted a series of restrictions, ranging from where abortions can be performed and by whom to requirements for waiting periods and, in the case of minors, parental notification. In essence, the appellate judges said, lawmakers said doctors can perform abortions as long as they follow those rules.

And the court said it’s no different with the 15-week ban, even though it was approved last year in the belief that the Supreme Court would uphold a similar Mississippi law.

More to the point, the judges said the fact that the high court totally overturned the 1973 ruling and returned the power to the states to regulate abortion did not undo all those new laws. And that, they said, means that doctors who follow those laws can’t be prosecuted under the old law.

The ruling is a loss for Attorney General Mark Brnovich who had urged the judges to allow prosecutors to decide whether they want to charge doctors who perform abortions with a crime.

But Brnovich, who made an unsuccessful bid for U.S. Senate when he could not legally seek a third term, will be out of power as of noon on Tuesday. And his successor, Kris Mayes, has said she doesn’t intend to appeal the ruling to the Arizona Supreme Court.

Only thing is, that doesn’t eliminate a possible petition to the state’s high court. And that’s because there are others involved in the case.

The lawsuit actually goes back to the 1970s when, even before Roe v. Wade, Planned Parenthood challenged the state’s abortion ban. At that time, the fight involved not just the state attorney general and the Pima County attorney but also Clifton Bloom who the court appointed as a “guardian ad litem” to represent the interests of unborn children in Arizona.

The outcome of that challenge was sealed with the 1973 Supreme Court ruling, with the state courts saying they had no choice but to follow suit and enjoin the enforcement of the territorial-era law. But when Roe was overturned last year, Brnovich reopened that case – this case – seeking to dissolve the injunction.

Bloom is now dead. And Pima County Superior Court Judge Kellie Johnson, who inherited the reopened case, agreed to let Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, be substituted in his place.

That means Hazelrigg, represented by the anti-abortion Alliance Defending Freedom, is a party – and may have the right to appeal.

“This is going to get interesting,” said Pima County Attorney Laura Conover.

She is part of the case because the original 1970s Planned Parenthood lawsuit also involved the county. But Conover, unlike her predecessor, has now sided with Planned Parenthood in arguing that the territorial-era law cannot be enforced against doctors.

And with Mayes going to also side with Planned Parenthood, that leaves everyone still involved in the case supporting the legality of the 15-week law – with only Hazelrigg in opposition if the courts allow him to continue playing a role.

There was no immediate response from ADF.

Friday’s ruling would appear to make it unnecessary for incoming Gov. Katie Hobbs to follow through with her campaign promise to call a special legislative session to repeal the territorial-era law as the appellate court ruling, unless overturned, means it cannot be applied to those legally entitled to perform abortions.

But Hobbs said that isn’t enough. She wants to also get rid of the 15-week law.

“The decision to have a child should rest solely between a woman and her doctor, not the government or politicians,” Hobbs said in a prepared statement after the ruling. And she said the 15-week law does the opposite.

“It puts the government in charge of a woman’s private health care decisions, with deadly consequences,” the incoming governor said. And once a woman has gone beyond 15 weeks, she said, it “cruelly offers no exceptions for victims of rape or incest.”

Only thing is, getting rid of that 15-week limit and returning the law in Arizona to the way it was before – meaning abortions up to fetal viability – would require legislative action. And Hobbs, in an interview with Capitol Media Services, acknowledged that could prove difficult.

“Many members of the incoming legislature voted for that,” she said. But Hobbs said that her conversations with different medical providers convinces her that the 15-week limit needs to be repealed.

One case, she said, involves a woman who was the victim of rape or incest where “the trauma was so great they weren’t able to recognize their pregnancy until it was far past the 15 weeks do to anything about it.”

The ultimate solution, Hobbs said, may rest with voters themselves.

A planned 2022 initiative to put the right to abortion into the Arizona Constitution faltered when backers did not have enough time to get signatures.

“I think there’ll be a strong effort for a ballot measure in 2024, which I will get behind,” Hobbs said.

Brnovich argues state can have 2 different abortion laws

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Attorney General Mark Brnovich (Randy Hoeft/Yuma Sun via AP)

Attorney General Mark Brnovich says there’s nothing legally wrong with having two different statutes on the books outlawing abortion because prosecutors can choose which one to enforce.

Or whether to enforce neither.

And hanging in the balance is the possibility that doctors who say they are following one law could still be sent to prison if a prosecutor decides to bring charges based on the other.

The claim comes as Brnovich is trying to convince the state Court of Appeals to rethink its conclusion that a trial judge has to “harmonize” a law going back to 1864 that pretty much outlaws the procedure with a new statute that allows abortions through the 15th week of pregnancy. Attorneys from Planned Parenthood Arizona are arguing that can be done by reading the new law as applying to doctors, keeping the territorial-era law only for those who are not medical professionals.

Brnovich, in a 70-page legal filing, said that argument is ridiculous on its face.

He pointed out the old law makes it a crime for a “person” to perform an abortion except to save the life of the mother. Violators face a mandatory penalty of between two and five years in state prison.

That law was effectively placed on hold by the 1973 U.S. Supreme Court ruling in Roe v. Wade which declared that women have a constitutional right to terminate a pregnancy until a fetus is viable, considered between 22 and 24 weeks.

In June, however, the justices overturned their own precedent, saying states are again free to enact their own abortion restrictions.

Brnovich said that reactivated the old law, which never was repealed. And he then got a trial judge to dissolve a state-issued injunction against its enforcement which was enacted after the original Roe decision.

All that, he argued, returns the law to what it was – including who could be punished. And that, he said, includes doctors who clearly are “persons” under state law.

“When the statute was enforced prior to the 1973 injunction, licensed physicians were not excluded from prosecution,” he told the appellate court.

It is true, Brnovich acknowledged, that lawmakers, acting before the Supreme Court overturned Roe, enacted the 15-week ban. But he told the appellate judges that does not permit them to conclude that this new law effectively exempts doctors from punishment under the old law.

“It is well-settled that the Legislature defines crimes and their elements, and courts may neither add nor subtract elements to those definitions,” the attorney general said.

More to the point, Brnovich argued that just because the same conduct is covered by two different laws – with different penalties – does not make it illegal.

“Local prosecutors have independent discretion to choose which statute to enforce,” he said. “Regardless of which statute a local prosecutor chooses to enforce, that choice does not mean the other abortion statutes conflict.”

And Brnovich said that is true here.

“If a licensed physician performs an abortion at a time during pregnancy when more than one criminal statute applies, then the decision whether to prosecute and what statute or statutes to apply belongs to the prosecutor,” he said. “Such prosecutorial discretion – even when a local prosecutor chooses the statute with a harsher penalty – does not render statutes left unenforced superfluous.”

And Brnovich said that is particularly true in cases like this, where lawmakers enacted the new law and did not repeal the old one, that the Legislature did not intend one of them to be the exclusive means to punish such conduct.

Of course, he acknowledged, that discretion by prosecutors goes beyond picking which law to use when bringing charges for performing an abortion. It also means they could decide, for whatever reason, not to bring charges at all, even if there is a violation of one or both laws.

But Brnovich said doctors cannot legally demand that they be subject only to the 15-week ban – and be exempted from prosecution under the older one.

“Unless the physician can establish that the county attorney’s choice among statutes discriminated against a particular class of defendants, there is no violation of due process in granting such prosecutorial discretion,” Brnovich said.

The judges will hear arguments at the end of the month.