Arizona Center for Policy President Says Court of Appeals Ruling on Abortion Not the End for Arizona’s Territorial-era Ban

Arizona Center for Policy President Cathi Herrod, Esq., stated that the Friday ruling from the Arizona Court of Appeals “harmonizing” Arizona’s abortion laws to allow physicians to perform abortions up to 15 weeks in pregnancy is not the end for Arizona’s territorial-era ban on the practice.

“The fight to protect unborn life and women from the harms of abortion does not end with an Arizona Court of Appeals ruling. The three-judge panel’s decision today only temporarily blocks Arizona’s abortion law, which was in place in 1973 when Roe was wrongly decided,” said Herrod. “I am confident Arizona’s pre-Roe law limiting abortion to cases where the mother’s life is at risk will be upheld by Arizona’s Supreme Court.”

Herrod explained that when Roe v. Wade was overturned, that gave elected lawmakers the ability to determine abortion laws for each state. When the overturn happened, the Arizona Senate Republican Caucus stated that the territorial-era ban, Arizona Revised Statute (ARS) 13-3603, went into effect and would be in addition to the 15-week ban created by Senate Bill (SB) 1164, sponsored by State Sen. Nancy Barto (R-Phoenix).

In September, Pima County Judge Kellie Johnson lifted an injunction placed on 13-3603, which Attorney General Mark Brnovich (R) applauded. According to the ruling, the injunction was placed on the law existed solely because of Roe, so the overturning meant the injunction no longer held weight.

However, Planned Parenthood appealed the ruling, stating the court was responsible for harmonizing all the relevant state statutes, leading to the recent decision.

The opinion released by Chief Judge Garye Vásquez states that both laws can coexist and keeps both the territorial ban on abortions and the 15-week law in place.

“In this case, harmonizing all of our state’s abortion statutes is not a difficult task. As the majority’s analysis demonstrates, our contemporary laws relating to abortion can be read, side by side, with our original one, without depriving any of continuing legislative logic or vitality,” according to the ruling.

The original law nearly entirely bans abortions in the state unless it is necessary to save the mother’s life. If the procedure is performed, the woman will not face any changes, but the physician could be imprisoned for two-to-five years. There are no exceptions for incest or rape. The new law outlines nearly the same restrictions of punishing the physician, not the woman, and having no exceptions, the only difference being the 15-week window where the procedure can be done legally.

Ultimately, Vásquez argued that keeping the territorial law as it was could create uncertainty for physicians performing the procedure. He states the law must be “sufficiently definite” to avoid “arbitrary enforcement.” He also recognizes that the Legislature “fully intends” its new statutes to “alter the pre-existing legal landscape” by amending, amplifying, or calibrating pre-existing statutes. Therefore, the territorial-era law will be in place, but with the 15-week window from the new law, giving physicians the ability to perform abortions in the state for a period of the pregnancy.

Vásquez’s ruling came just days before Brnovich was set to leave his office Monday, handing the reigns of Attorney General to Democrat Kris Mayes. Following the verdict, Mayes said she agreed with Vásquez’s opinion but also stated it did not go far enough and that she would “continue to fight” for “reproductive rights” as the next Attorney General.

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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Cathi Herrod” by Center for Arizona Policy. Background Photo “Arizona Supreme Court” by davidpinter. CC BY 3.0.

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