Judges mull whether Arizona’s 1864 abortion ban can co-exist with 50 years of laws regulating abortion

The future of abortion access in Arizona remains in limbo after a three-judge panel in Tucson heard arguments Wednesday on the validity and application of a near-total ban from 1864 — and whether it can coexist with a 15-week ban passed this year. 

The Arizona Court of Appeals took on the case after a trial judge in September removed a nearly 50-year-old injunction blocking the Civil War-era abortion ban, effectively reinstating it and threatening abortion providers across the state with 2 to 5 years in prison, after the U.S. Supreme Court stripped Americans of the constitutional right to abortion. 

Planned Parenthood of Arizona appealed that ruling, and judges heard arguments in the case on Wednesday.

Background: A post-Roe Arizona

In June of this year, the newly conservative U.S. Supreme Court struck down the constitutional right to abortion protected in Roe v. Wade when it ruled in Dobbs v. Jackson Women’s Health Organization. The case determined that a 15-week abortion ban passed in Missisissppi — while federal laws at the time prohibited bans before 24 weeks — was perfectly legal because nothing in the Constitution protected a woman’s right to an abortion. 

During that time, the GOP-controlled state legislature in Arizona passed a nearly identical 15-week ban of their own, in the hopes that the high court would rule in favor of Mississippi. 

Shortly after that hope was realized, Attorney General Mark Brnovich went to court to request the nullification of an injunction blocking the near-total ban that was first added to Arizona’s territorial statutes in 1864. That injunction was placed in 1973, after Roe was enshrined at the federal level, but without its protections, Judge Kellie Johnson ruled to remove it. 

Planned Parenthood of Arizona, the state’s largest abortion provider, running four of the states nine clinics offering the service, fought against Brnovich’s request. The core of Planned Parenthood’s argument is that decades of regulations passed since the 1973 injunction, including this year’s 15-week ban, muddled the legal landscape for doctors and implied that abortion, to some extent, was permitted. 

Johnson sided with the state, but refused to harmonize the total ban with the laws regulating abortion in Arizona. Planned Parenthood appealed her decision and the appeals court granted a pause of the 1864 ban while it considered the case and its implications, which it said Johnson was wrong not to rule on. 

A deal in October in a separate legal challenge to the 1864 law from doctors guaranteed that access to abortion before 15 weeks would continue until at least next year, but a decision from the appeals court could define the procedure’s future in the Grand Canyon State, as well as who, exactly, is subject to the mandatory 2 to 5 year prison sentence. No exact date was given for that decision by judges on Wednesday, but it could come any day. 

Planned Parenthood’s argument: Tangled laws need sorting out

On Wednesday, attorneys for Planned Parenthood and Pima County, which joined the challenge, argued that the 1864 ban needs to fit in with the state’s myriad other abortion laws, and that the intent of the lawmakers in passing the 15-week ban was, in fact, an attempt to preserve access to the procedure. 

Attorney Sarah MacDougall told the judges that Johnson was wrong to reinstate the 1864 ban without accounting for nearly 50 years of new laws passed by legislators acting in recognition of the will of the people.

“This decision effectively implicitly repealed, in a spectacularly undemocratic fashion, all of the abortion laws enacted by Arizona’s elected representatives in the 1970s, 1980s, 1990s, 2000s, 2010s and as recently as this past spring, when the legislature enacted a law in anticipation of the U.S. Supreme Court’s ruling in (Dobbs),” she said. 

The law passed in the spring includes language which explicitly states that it doesn’t intend to guarantee a right to abortion or repeal past laws. Proponents of the 1864 law have pointed to that language as proof that the Civil War-era ban is the law of the land. But, MacDougall said, that same provision means that every other law governing abortion access is also left intact. 

Those laws, which include regulations on the procedure like a 24-hour waiting period and mandatory ultrasounds, clearly support the premise that “certain conduct is permissible provided certain conditions are met,” MacDougall said. 

The legislature could have avoided the current legal back and forth by passing a law stating that, provided Roe was struck down, the 1864 ban would be reinstated — but they didn’t, said Samuel Brown, an attorney for Pima County. Now, he said, it’s up to the courts to harmonize the laws. 

Brnovich’s claim that the 15-week limit and the 1864 near-total ban can co-exist and are subject to a prosecutor’s discretion on which to enforce — one, both, or neither — is not valid, MacDougall added, because the two are in direct conflict with each other. The 15-week law prohibits elective abortions after 15 weeks, while the 1864 law only ever allows abortions to save a woman’s life. 

“This is not the case where there’s simply several criminal statutes that (criminal) conduct could be charged under where everyone is clear on what is prohibited,” she said. “Here, there are statutes saying opposite things, and as we saw (before the appeals court paused the ban), people just simply did not know what the law was and that is not an instance where prosecutorial discretion can be allowed to have the final say.”

A clear example of this is Brnovich’s ongoing tiff with Gov. Doug Ducey, who has repeatedly stated that the 15-week limit should supersede the 1864 ban. If top state officials can’t agree, Brown asked, how is the average layperson supposed to? 

While Judge Peter Swann dismissed the presentation of Brnovich’s argument with Ducey as outside the scope of the court’s concerns, he appeared receptive to Planned Parenthood of Arizona’s argument when he posited that the way to harmonize the two laws might be by treating the 15-week limit as an exception to the near-total abortion ban in the 1864 law, in addition to the one already baked into the language which allows an abortion to be provided if the woman’s life is at risk. 

“It’s entirely possible to interpret the 2022 legislation as simply carving out another exception… and that exception would be within the first 15 weeks that physicians are permitted to perform abortions,” he said. 

AG’s argument: There are no conflicts

Michael S. Catlett, the chief counsel of special litigation for the Attorney General’s Office, was left fielding probing questions — and several barbs — from judges concerned about the extent to which Brnovich’s interpretation lets prosecutors handpick their challenges and the implications a vague understanding of the law could have. 

A centerpiece of Brnovich’s argument is that the new 15-week law and the 1864 near-total abortion can exist together. Catlett defended that view by pointing to a host of previous case laws stating that prosecutors have the final say when deciding which laws to enforce. 

“Those statutes can co-exist and prosecutorial discretion plays the role in determining what gets charged if an abortion gets performed at particular times,” he said. 

Judge Peter Eckerstrom wasn’t convinced, saying that if the court ruled to simultaneously approve both laws, physicians and Arizonans would be confused about what constitutes legal and illegal behavior, precisely because the more recent law appears to permit abortions up to 15 weeks. Giving so much discretion to prosecutors — in this case, county attorneys who are charged with enforcing the state’s laws — can be dangerous, Eckerstrom said. 

“The ability of law enforcement to do one thing to one person and a different thing to another person, maybe presumably based on the political affiliation of the county attorney of the county you happen to live in, is specifically the evil we’re trying to avoid when we’re worried about vague interpretations of the law in the criminal arena,” he said. 

Additionally, the due process clause of the Arizona Constitution mandates that criminal laws must not be vague so that citizens can be sure they are not violating them and that arbitrary enforcement against them doesn’t take place, Eckerstrom added. 

Swann asked why, if the legislature’s true intent was to outlaw abortions altogether, did it not just allow the 1864 ban to stand on it’s own without adding confusing laws to the books? After all, he noted, the language of the 15-week limit says it’s intended to restrict abortion after 15 weeks, not eliminate it. 

“It seems to me if the intent were to simply say you can be prosecuted if you do it up to 15 weeks, they would have said that,” he said. “This was carefully crafted language and it doesn’t seem to me that any fidelity to the text of this can say they didn’t intend that any abortions could happen.” 

Catlett disputed the idea that the 15-week law greenlights abortion procedures at all, pointing to the language expressly stating that it doesn’t outline a constitutional right to abortion. Instead, legislators developed it as a flexible safeguard in view of lingering uncertainty about the high court’s ruling in the Dobbs case, he said. 

There were three possible outcomes Arizona lawmakers were trying to get ahead of, according to Catlett: the preservation of Roe, in which case the 15-week limit would have been nullified, the modification of Roe wherein the 15-week limit might have been permitted to stand or the overturning of Roe, for which the provision that states the 15-week law doesn’t repeal previous laws was included. 

“When you look at the language,” Catlett said, “I think it’s pretty clear that the legislative intent was not to permit or allow abortion prior to 15 weeks. It was to restrict it after 15 weeks, and the legislature understood that if Roe v. Wade was overruled that (the 1864 law) would come back into effect.” 

Catlett also argued that Planned Parenthood of Arizona’s frequent request that the 1864 law be applied only to non-doctors is absurd, as a court has previously ruled that it does, in fact, govern any and all persons. 

Swann asked if women seeking an abortion are included in that assessment, citing a lack of clarity because the 1864 law doesn’t explicitly exclude them from punishment but the 15-week expressly forbids it. 

“Any person, I think, includes women,” Swann said. 

A companion law that explicitly criminalized women who seek abortions, Catlett responded, was repealed in 2021. 

In the end, both the 1864 near-total ban and the 15-week law coexist on the books, Catlett said, and he rebutted the concern from Planned Parenthood that the territorial law automatically nullified the laws regulating abortions. The fact that it includes an exception for abortions performed to save the life of the woman means that those regulations must still be carried out. 

“Abortions will still occur under (the 1864 ban),” he said. “When abortions occur, those statutes apply. Informed consent, reporting requirements and the physician-only laws.”

Eckerstrom took issue with this interpretation, saying that reasoning could result in preposterous circumstances. 

“The only (abortions) that are going to be performed under the (1864 ban) are going to be to save the life of the mother,” he said. “So, you’re saying that the legislature…is saying that when we’ve gotta do an abortion to save the life of a mother, you better show her a picture of a sonogram so she feels good about that decision?” 

That’s what the law says, Catlett responded. 

A Final Decision: In the works

For now, abortion services up to 15-weeks continue to be offered across the state after a previous agreement between Brnovich and the American Civil Liberties Union, which filed a different lawsuit on behalf of doctors in the state, paused the 1864 near-total ban until 45 days after the appeals court’s ruling. 

In a statement, Planned Parenthood of Arizona CEO Brittany Fonteno said she’s hopeful the appeals court will rule in the organization’s favor. Regardless of the outcome, Fonteno said Planned Parenthood would continue working to protect abortion access. 

“With today’s oral arguments, we are one step closer to protecting abortion access in Arizona,” she said in an emailed statement, “We know the work is far from done and we have said it all along — we will not stop fighting.”