The Arizona Supreme Court heard oral arguments Tuesday in Planned Parenthood Arizona v. Mayes about whether to restore Arizona’s pre-statehood near-total abortion ban from 1864 or solely enforce the 15-week ban enacted in March 2022 that is currently in effect.
Planned Parenthood is challenging the potential reinstatement of the 159-year-old abortion ban, which has exceptions only for life-threatening emergencies. The near-total abortion ban had been blocked by the Arizona Court of Appeals on constitutional privacy grounds nearly a year before the 1973 Roe v. Wade decision. In December 2022, the Appeals Court evaluated the Civil War-era ban and stated it must be “harmonized” with the more current law. The Appeals Court denied it from retaking effect favoring the more recent 15-week ban.
In May 2023, Liberty Counsel filed an amicus brief urging the Arizona Supreme Court to review the case. Then in October, Liberty Counsel filed another amicus brief in this arguing for the reinstatement of the original 1864 law, both to protect life and to prevent Arizona’s prohibition on eugenic abortions from being undermined. Liberty Counsel filed the amicus briefs on behalf of the Arizona Life Coalition, the Frederick Douglass Foundation and the National Hispanic Christian Leadership Conference which have a strong interest in exposing the racist and eugenic history of the abortion movement that has had catastrophic effects on their communities and other vulnerable populations. These organizations also have a strong interest in defending state laws like Arizona’s 159-year-old abortion ban to protect unborn minority and disabled children from social eugenic policies.
During Tuesday’s argument, the six-judge panel presiding over the case focused their questions on the legislative intent of the 15-week ban asking whether it was designed to repeal or replace the 1864 ban, or whether it allows for an elective abortion prior to 15 weeks. The justices also probed with questions about the potential for differing criminal penalties between the two laws.
Addressing those questions was attorney Jake Warner, who represented Dr. Eric Hazelrigg, an obstetrician and medical director of Choices Pregnancy Center in Arizona who was appointed by the Arizona Superior Court as the “guardian ad litem” to legally represent the best interests of unborn babies in the state. He is asking the Arizona Supreme Court to reverse the appeals court decision and reinstate the 1864 near-total abortion ban to protect unborn lives.
Warner argued the legislators never wanted to repeal Arizona’s near-total abortion ban when they wrote the 15-week law.
Warner stated, “What the legislature did give us…doesn’t repeal [the 1864 law], it creates no right to an abortion, and it legalizes no currently unlawful abortion.” He noted that both the 1864 law and the 2022 law “fit together” because both laws have exceptions for saving the life of the mother. Warner explained that under the 1864 law, abortions need only to be lifesaving while the 2022 law states abortions must be lifesaving before 15 weeks of pregnancy, and that abortions after 15 weeks must be “immediately” lifesaving in an emergency.
According to Warner, the 15-week ban is “fully applicable” with the 1864 law and only adds an “immediacy requirement” after 15 weeks or pregnancy.
Vice Chief Justice Ann Scott Timmer questioned the differing penalties under the two laws, such as a two-to-five-year prison sentence for violating the pre-statehood law while the more recent 15-week ban carries significantly less class five felony penalties.
Warner responded, “The parties do not dispute that these laws regulate separate offenses and prosecutors would have discretion to choose which law to prosecute under depending on if the elements were satisfied.”
Attorneys for Planned Parenthood of Arizona, the state of Arizona, and Pima County argued that the two laws were inherently contradictory where the 15-week law contains both certain permissions and prohibitions regarding abortion while the 1864 law focuses solely on abortion prohibitions.
Arizona Solicitor General Joshua Bendor argued, “The issue comes when we have a combination of permissions and prohibitions, then we have statutory conflict and then we need to do statutory harmonization.” The attorneys further argued that while the 1864 law allows an abortion during a medical emergency, the 15-week law would “criminalize that very same act” after 15 weeks if the emergency wasn’t immediately life threatening.
The three attorneys arguing to keep an injunction against the 1864 law concluded that “doctors in Arizona need to be clear on what is legal and illegal” and this case is “ultimately a policy question” that doesn’t belong in the courts but in the legislature.
During his rebuttal, Warner told the Justices, “I don’t believe there is a conflict here. The legislature has given express direction. The [1864 law] is the winner if we have to choose.”
A ruling is expected next year.
Instead of a seven-judge panel, six judges presided over the arguments after Justice Bill Montgomery recused himself under pressure from Planned Parenthood. In 2017, before being appointed to the Arizona’s High Court, Justice Montgomery on social media compared Planned Parenthood’s abortion practices to “generational genocide.”
In the event of a 3-3 decision, the Court of Appeals decision to block the 1864 law will stand.
Liberty Counsel Founder and Chairman Mat Staver said, “Arizona’s legislature has not repealed the pre-Roe, pre- statehood law from 1864. This pro-life law was just as correct when it was passed as it is today. Abortion harms women physically and emotionally and kills defenseless children in the womb. Reinstating this law will protect countless women and innocent unborn lives. The people of Arizona deserve to have their laws enforced and now it’s up to the Arizona Supreme Court to do the right thing and protect virtually all unborn life in the state.”
