PHOENIX (AP) — An Arizona court has ruled that abortion doctors cannot be prosecuted under a prior state law that criminalized nearly all abortions but has been banned from enforcement for decades.
But the Arizona Court of Appeals on Friday refused to overturn the 1864 law, which carries a sentence of two to five years in prison for anyone who assists in an abortion and provides no exceptions for rape or incest.
However, the court said doctors cannot be prosecuted for performing abortions in the first 15 weeks of pregnancy because other Arizona laws passed in recent years allow them to perform the procedure — even though the non-doctors were still subject to prosecution under the old law.
“The statutes, read together, make clear that physicians are permitted to perform abortions as regulated” by other abortion laws, the appeals court wrote.
The prior state law, which allowed abortion only if a patient’s life was in danger, was blocked from implementation shortly after the US Supreme Court issued its 1973 Roe v. Wade guaranteed women a constitutional right to an abortion.
But after the Supreme Court overturned the landmark ruling in June, Attorney General Mark Brnovich asked a state judge to allow the law to go into effect.
The Arizona Court of Appeals said it did not view the pre-statehood law in isolation from other state abortion laws, explaining that “the legislature created a complex regulatory scheme to achieve its goal of restricting — but not to eliminate – elective abortions.”
In a statement, Brittany Fonteno, president and chief executive of Planned Parenthood Arizona, said the decision means the state law limiting abortions to 15 weeks into pregnancy will remain in place.
“Let me be clear today is a good day,” Fonteno said. “The Arizona Court of Appeals has given us the clarity that Planned Parenthood Arizona has sought for months: When provided by licensed physicians in compliance with other Arizona laws and regulations, abortions at 15 weeks remain legal .”
The appeals court rejected Brnovich’s claim that doctors could be sued under the state preemptive law, saying the attorney general’s argument ignored the Legislature’s intent to regulate but not eliminate abortions and violated due process. process by promoting arbitrary enforcement.
“Brnovich’s interpretation would not only invite arbitrary enforcement, it would almost demand it,” the appeals court wrote.
The attorney general’s office did not immediately respond to a request for comment on the decision, which was released Friday afternoon. In a tweet, Attorney General-elect Kris Mayes, a supporter of abortion rights, said he agreed with the ruling that doctors cannot be prosecuted for performing the procedure in the first 15 weeks of pregnancy and vowed to “continue to fight for reproductive freedom. ”
Abortion providers stopped providing the procedure in the state after Roe was overturned, restarting in mid-July after a “personhood” law granting legal rights to unborn children was blocked by court, and stopped them again when a Tucson judge allowed the 1864 law to go into effect.
Planned Parenthood Arizona, the state’s largest abortion provider, restarted abortion care statewide after Brnovich’s office agreed in another case not to implement the old law at least until next year.
A Phoenix doctor who runs a clinic that provides abortions and the Arizona Medical Association also filed a separate lawsuit seeking to block the law during the territorial period, arguing that laws enacted by the Legislature after the decision of Roe should prevail and abortions should be permitted up to 15 weeks into pregnancy.
Brnovich sought to delay that case until the Court of Appeals decides the Planned Parenthood case. In an agreement with the abortion doctor and the medical association, he said he would not enforce the old law until at least 45 days after the final decision in the original case.
A law passed by the Legislature this year limits abortions to 15 weeks into pregnancy, ahead of the 24 weeks generally allowed under the Roe decision that was overturned by the US Supreme Court in June.
After the Roe decision was overturned and the issue of abortion was left up to the states, bans took effect in some states.
Abortion is 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 in effect, at least for now, while courts decide whether to enforce them.
