Abortion access in AZ will be decided Tuesday, when the Supreme Court rules on an 1864 ban

The Arizona Supreme Court’s long-awaited ruling on whether virtually all abortions performed in the Grand Canyon State should be outlawed will be released Tuesday morning. 

In December, the high court heard oral arguments in an appeal launched by an anti-abortion doctor hoping to reinstate a near-total ban from 1864 — nearly six decades before Arizona became a state — that prohibits all abortions except for those to save the life of the mother. The legal challenge seeks to overturn the decision from a lower court that determined the 1864 law shouldn’t overrule nearly 50 years of new laws, and a more recent 15-week gestational ban, passed in 2022, should be upheld instead. 

The lead-up

Two years ago, the U.S. Supreme Court eliminated the constitutional right to abortion and sent the power to restrict abortion back to the states in Dobbs v. Jackson Women’s Health Organization. That ruling ushered in months of legal uncertainty for women and doctors  in Arizona, as state officials and the courts grappled with the degree to which abortion should be permitted. 

Just months before the Supreme Court’s decision to decimate the protections in Roe v. Wade, the GOP-majority in the Arizona legislature had passed a 15-week gestational ban in anticipation of a favorable ruling. But a harsher law from when Arizona was a territory was still on the books, held back by an injunction that relied on Roe. 

The conflicts between the two laws caused clinics to shutter for months. While the 2022 law allows elective abortions up to 15 weeks, with exceptions for permanent injury or life-threatening emergencies beyond that point, the 1864 law prohibits all abortions except those to save the life of the woman. 

And each has its own punishments: The 15-week ban threatens providers who violate its provisions with a class 6 felony and a revoked license while the 1864 law punishes doctors with a mandatory 2 to 5 year prison sentence. 

Shortly after the overturning of Roe, a trial court judge briefly reinstated the 1864 ban, reasoning that a clause in the 15-week law that states that it doesn’t repeal any laws that came before its passage meant that the Civil War-era law should reign supreme. Planned Parenthood Arizona, the state’s largest abortion provider, challenged that decision and convinced the state appellate court to uphold the 15-week gestational ban instead. The appeals court judges ruled that erasing nearly five decades of abortion laws that were enacted in Arizona after 1973 when Roe was decided would be erroneous. 

In November 2022, when Arizonans elected a slate of pro-choice Democrats to statewide office, the threat against abortion access was widely regarded as a non-issue. Gov. Katie Hobbs and Arizona Attorney General Kris Mayes both vowed not to prosecute doctors or women for providing or seeking abortion care. 

But Alliance Defending Freedom, an anti-abortion law firm based in Scottsdale, filed an appeal on behalf of Dr. Eric Hazelrigg, urging the Arizona Supreme Court to restore the Civil War-era law. Hazelrigg, who is the medical director of a Valley-wide chain of anti-abortion clinics, was admitted into the case at the trial court stage as a “guardian ad litem” to represent unborn children in Arizona. 

The arguments

Attorneys for Hazelrigg told judges during last year’s hearing that the appellate court’s ruling was wrong and the Arizona legislature’s intent was clear: Abortion should be illegal in nearly all cases. The 2022 law and the 1864 law can be harmonized, but in no way does the gestational ban allow abortions to occur as the appellate judges concluded, said Alliance Defending Freedom attorney Jake Warner. Instead, the 2022 law, which includes exceptions for women facing permanent injury or an “immediate” life-threatening emergency, works to modify the 1864 near-total ban by adding an urgency requirement to its exception for life-saving procedures. 

Up until 15 weeks, according to Warner, every abortion except to save the patient’s life — as mandated under the 1864 law — is forbidden. After that point, the exception caveat in the 15-week ban kicks in, and a woman must face “immediate” danger to receive an abortion. 

And Warner argued that not all health conditions constitute an emergency under the 15-week law. A cancer patient, for example, who previously would obtain an abortion to be able to begin treatment, would no longer be able to, and must instead wait until the pregnancy was complete. 

Andy Gaona, an attorney for Planned Parenthood Arizona, argued that the appellate court was correct when it preserved nearly 50 years of lawmaking by upholding the 15-week ban over the 1864 law. The legislature should have been clearer about its intent to outlaw all abortions if that’s what it truly sought to do, instead of simply limiting the procedure up to 15 weeks, he said. 

Proponents of the 1864 law, including GOP legislative leaders Ben Toma and Warren Petersen, who filed an amicus brief supporting Hazelrigg’s appeal, claim that a provision in the 15-week law which states that it doesn’t repeal all the laws that came before it automatically greenlights the Civil War-era law. 

But, Gaona said, that’s not enough. He pointed to the difference between the Arizona law and the Mississippi law it was modeled after as proof that Arizona legislators didn’t actually mean to outright ban all abortions. A clause in the Mississippi law stated that any abortion which complied with its 15-week ban but violated any other law was illegal at the end of the day. 

Arizona lawmakers didn’t include that provision in the state’s otherwise identical version. 

The possible outcomes

The Arizona Supreme Court can decide to reaffirm the appellate court’s ruling, leaving abortion in Arizona intact up to 15 weeks, as is currently the case. Siding with Hazelrigg, meanwhile, would virtually end abortion access in the state, unless Arizona women are facing life-endangering circumstances or permanent, irreversible injury. 

And that ruling would leave no avenue for appeal. Reproductive rights advocates, who are currently focused on convincing the judges to reaffirm the appellate court decision, would be left with no other options but to go back to the drawing board and attempt to challenge the law from a different legal angle. 

While upholding the 1864 law would eventually lead to a near-total ban across the state, access to abortion care under the 15-week gestational ban would continue for a limited period of time. That’s because, in 2022, when then-Attorney General Mark Brnovich went to court for the first time to reinstate the 1864 law, the Arizona Medical Association and a Phoenix abortion provider launched their own lawsuit against the law. To avoid having to deal with two court cases at once, Brnovich agreed to a deal under which Arizona would be barred from enforcing the 1864 law until 45 days after the Arizona Supreme Court issued a final ruling. 

A third option is a tie. While the Arizona Supreme Court is made up of 7 justices, only 6 are overseeing the case. Justice Bill Montgomery abruptly recused himself less than two weeks before oral arguments were held following public backlash after reporting from the Arizona Mirror and The 19th found he had previously blamed Planned Parenthood for orchestrating “the greatest genocide known to man”.  

If the six justices evenly split on their ruling, the appellate court’s decision will stand. 

The greater context

Reproductive rights advocates watching for the court ruling are taking the long view, pinning their hopes on the November election for lasting change. A constitutional amendment aimed at enshrining abortion access in the Arizona Constitution, protecting it against threats from the courts or the GOP-majority legislature, is headed for the ballot. 

If Arizona voters decide to support it, abortion will be accessible up to 24 weeks of gestation, with exceptions beyond that point if the doctor deems it necessary to protect the life, physical or mental health of the patient. 

The initiative is still in the signature-gathering stage, but the campaign spearheading it announced earlier this month that it had gathered 500,000 signatures and the plan is to get at least 750,000. It needs to gather 383,923 verified voter signatures to qualify for the ballot. 

For abortion providers awaiting news on their ability to keep their clinics running, the announcement that the Supreme Court ruling will be coming on Tuesday was met with cautious optimism. Dr. Gabrielle Goodrick, medical director of Camelback Family Planning, one of nine abortion clinics in the entire state, told the Mirror that she is looking forward to good news. The Civil War-era law, she said, is the wrong move for Arizona.

“I am hopeful that the (court) will not reinstate a law from 1864 that is vague, unenforceable and confusing,” she said, in a text message.