Arizona court rules doctors can’t be prosecuted under 1864 near-total ban
Dec 30, 2022, 5:56 PM | Updated: 6:19 pm
A protestor holds a sign reading 'My Body My Choice' at a Women's March rally where Arizona Secretary of State and Democratic gubernatorial candidate Katie Hobbs spoke outside the State Capitol on October 8, 2022 in Phoenix, Arizona. (Photo by Mario Tama/Getty Images)
(Photo by Mario Tama/Getty Images)
PHOENIX — An Arizona Court of Appeals ruled on Friday that the new 15-week abortion ban is the law statewide and doctors cannot be prosecuted under the near-total ban that dates back to 1864.
The three-judge panel unanimously ruled in favor of Planned Parenthood Arizona.
The court said doctors can’t be prosecuted for for a felony for performing abortions 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.
“The question at the core of this appeal is whether a licensed physician who performs an elective abortion in conformity with more recent statutes in Title 36 is nevertheless subject to prosecution under (Arizona’s Territorial Law),” the ruling stated. “Because Title 36 permits physicians to perform elective abortions under certain circumstances, the answer is no.”
The 15-week ban signed by Gov. Doug Ducey in March says that a physician cannot knowingly perform an abortion if the probable age of the unborn human being has been determined to be greater than 15 weeks absent “a medical emergency.”
The pre-statehood abortion ban law had been blocked since Roe v. Wade was decided in 1973, but the the United States Supreme Court overturned Roe in June.
Republican Arizona Attorney General Mark Brnovich asked that the injunction blocking enforcement of the pre-statehood abortion be lifted.
The 15-week ban was set to go into effect Sept. 24, but a day earlier, a Pima County Superior Court judge ruled that the near-total ban could be enforced.
Friday’s ruling harmonizes the state’s stance on abortion.
Abortion providers stopped providing the procedure in the state after Roe was struck down, restarted in mid-July after a “personhood” law giving legal rights to unborn children was blocked by a court, and stopped them again when a Tucson judge allowed the 1864 law to be enforced.
Planned Parenthood Arizona, the state’s largest provider of abortions, restarted abortion care across the state again after Brnovich’s office agreed in another lawsuit not to enforce the old law at least until next year.
Planned Parenthood Arizona’s President and CEO Brittany Fonteno called Friday a good day due to the clarity of the law in place.
“Stopping Attorney General Brnovich’s efforts to impose a near-total abortion ban in the state has been a hard-fought victory, but we won’t be fooled, we know the work is not over,” Fonteno said in a statement.
Arizona Gov.-elect Katie Hobbs quickly responded to the ruling by stating neither abortion ban has no place in the state.
“In November, the people of Arizona made clear that they believe in women’s fundamental rights,” Hobbs said in a statement. “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.”
Arizona’s Attorney General’s office can appeal the decision to the Arizona Supreme Court.
Abortion is considered illegal at all stages of pregnancy, with various exceptions, in 13 states: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota , Tennessee, Texas, West Virginia and Wisconsin.
Bans in Arizona, Montana, North Dakota, Ohio, South Carolina, Utah and Wyoming are also not in effect, at least for now, as courts decide whether they can be enforced.
The Associated Press contributed to this report.
