February 29, 2024

In a pivotal session on Tuesday, the Arizona Supreme Court delved into intense discussions, scrutinizing whether a longstanding pre-statehood ban on almost all abortions still holds relevance or has been nullified by subsequent statutes enacted over the past 50 years. The state’s highest court is revisiting a lower-court decision that contended doctors couldn’t be prosecuted for performing abortions within the initial 15 weeks of pregnancy, citing other Arizona laws that have evolved to permit such procedures.

The Lingering Shadows of 1864 Abortion Law

Dating back to 1864, an archaic law, still in effect, imposes an almost total ban on abortions, with no exemptions for cases of rape or incest, except when the mother’s life is in jeopardy. Nearly a year ago, the Arizona Court of Appeals asserted that doctors couldn’t face charges for performing abortions within the first 15 weeks. However, it maintained that individuals who are not medical practitioners could still be subject to prosecution under the ancient law.

Representing Dr. Eric Hazelrigg, the medical director of anti-abortion counseling centers in metro Phoenix, attorneys are contending that the Court of Appeals erred in concluding that the law doesn’t apply to doctors. They are urging the Supreme Court to lift the lower court’s injunction.

Jacob Warner, legal representative for Hazelrigg, argues that Arizona’s 15-week abortion law, enacted in 2022 after the U.S. Supreme Court overturned Roe v. Wade, explicitly states that abortion is permissible only after this timeframe to safeguard the mother’s life or prevent significant reversible bodily harm.

Clashing Perspectives

Andrew Gaona, an attorney representing Planned Parenthood Arizona, contends that over the past 50 years, while regulating abortion laws, Arizona lawmakers did not signal any intention that these subsequent enactments would become obsolete if Roe v. Wade were ever overturned.

Historically, a court had blocked enforcement of the 1864 law right after the U.S. Supreme Court issued the Roe v. Wade decision in 1973, guaranteeing a constitutional right to abortion. Following the Supreme Court’s overturning of the decision in June 2022, the then-Republican Attorney General Mark Brnovich succeeded in lifting the block. The current Democratic Attorney General Kris Mayes has urged the state’s high court to reject Hazelrigg’s appeal.

The Ongoing Battle for Reproductive Rights

As temperatures rise, advocates for abortion rights are actively mobilizing to secure a constitutional right to abortion directly from Arizona voters. A proposed constitutional amendment aims to guarantee abortion rights until a fetus can survive outside the womb, typically around 24 weeks of pregnancy. It also provides for later abortions to save the mother’s life or protect her physical or mental health.

Dr. Jill Gibson, Chief Medical Officer of Planned Parenthood Arizona, emphasizes the potential dire consequences of a near-total abortion ban, stating, “A near-total ban on abortion in our state would be catastrophic to the well-being of our communities and deeply out of touch with the will of the majority of Arizonans.”

Conclusion

The Arizona Supreme Court now faces the challenging task of determining the fate of the 1864 abortion law in the context of the current legal landscape. The echoes of historical decisions resonate with the ongoing struggle for reproductive rights in the state. Regardless of the outcome, the decision will undoubtedly shape the future trajectory of abortion laws in Arizona.

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