Arizona doctors say territorial-era abortion law should only be for those without medical licenses
By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona doctors want a judge to rule that the state's 1864 law banning virtually all abortions applies only to people without medical licenses.
And that would free them to once again perform the medical procedure -- at least through the 15th week of pregnancy.
Attorneys for the Arizona Medical Association and Dr. Paul Isaacson, who had been performing abortions for 20 years, do not dispute that the territorial-era law remains on the books. In fact, state lawmakers, in enacting a 15-week ban earlier this year, specifically said they were not repealing the old law which has no exceptions for rape or incest.
But they contend in a lawsuit filed Tuesday that the court is required to "harmonize'' the two laws. And what that means, they told Maricopa County Superior Court Judge Joseph Mikitish, is the 15-week ban applies to doctors -- and that anyone else is subject to the old law.
Planned Parenthood of Arizona made the same argument last month to Pima County Superior Court Judge Kellie Johnson. But she refused to consider it, saying the only thing before her was whether to grant the request by Attorney General Mark Brnovich to dissolve a 1973 injunction against enforcing the old abortion law after the U.S. Supreme Court overturned Roe v. Wade, which she did.
And Johnson made it clear she was not deciding the merits of the claim of which law takes precedence, and when.
"While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortion, those questions are not for this court to decide here,'' she wrote.
By contrast, this new lawsuit seeks a definitive ruling from the court, unaffected by any other factors, of how the two laws can -- or cannot -- both coexist and be enforced, and to whom they apply.
Lawyers for the challengers said there's plenty of evidence that state lawmakers do want doctors to perform abortions. They cite a series of restrictions legislators have enacted since 1973, when the Roe decision came down, on how the procedure can be done.
For example, a 1999 state law spells out requirements for licensing and operation of abortion facilities.
In 2009, lawmakers imposed a 24-hour waiting period between the time a patient is informed about the procedure and when it can be performed. Then there is a 2011 law banning abortions based on the race or sex of the fetus, and a 2021 law making it illegal to perform abortions "sought solely because of the genetic abnormality of the child.''
And, finally, there's the 15-week ban.
Sen. Nancy Barto, R-Phoenix, said she proposed it when the U.S. Supreme Court was considering an identical Mississippi law. The idea was to have a law on the books if the justices upheld that statute.
But Barto also included language saying the 15-week ban does not repeal the territorial-era law, a move designed to deal with the possibility the justices would overturn Roe and leave decisions on abortion to each state -- which is exactly what happened.
What that also did, according to challengers, is leave the state of the law in disarray in Arizona. The legal papers even quote from a news story where Ducey told Capitol Media Services, even before Roe was overturned, that he believes the 15-week law he signed preempted the territorial law.
The challengers told Mikitish that the solution is simple: Declare both the territorial and newer laws effective -- but in different ways.
It start with the fact that the newer laws are specific to what doctors can and cannot do. That includes the latest which says which says that, except in an emergency,"a physician'' may not knowingly or intentionally perform an abortion if the fetus is at least 15 weeks along.
"The text of the physician-only laws, for example, is clear: Licensed physicians are allowed to provide abortions subject to Arizona's other regulations,'' the challengers argue. "Thus, the territorial law's prohibition applies to non-physicians.''
That, they say, gives effect to all legislative enactments. The alternative, according to challengers, is for an "untenable interpretation'' that the territorial law somehow preempts all the newer laws and outlaws the abortions that doctors have been performing in Arizona, legally, for years.
"Such a reading would not only nullify decades of laws passed by the peoples' elected representatives, but would also conflict with the presumption that the more recent, specific statute governs over an older, more general statute,'' they told Mikitish.
The attorneys also pointed out that some states enacted "trigger laws'' outlawing all abortions which would immediately become effective if the Supreme Court overruled Roe.
"Arizona's legislature did not do so,'' they noted, meaning there was no clear intent to ban the procedure once the Supreme Court ruled.
"Reviving in full a law dating back more than 120 years by default without popular electoral support, and in a manner that obliterates numerous duly enacted laws and regulations that were passed more recently and deal more specifically with the subject matter, would actually (ITALICS) prevent (ROMAN) the state from carrying out (ITALICS) all (ROMAN) of its duly enacted laws,'' the challengers said. "Ordered liberty requires this court to make clear the law going forward.''
That sentiment was underlined in a prepared statement from Nancy Northup, president and CEO of the Center for Reproductive Rights, one of the law firms that is representing the doctors.
"This has put Arizonans in an untenable situation,'' she said
"Providers and patients have no sense of what the law is and whether they are breaking it,'' Northup continued. "The court must restore abortion access and put an end to this legal and public health crisis.''
The judge has set a hearing for next week.
Brnovich said he has not seen the lawsuit.
But he told Capitol Media Services it has always been his position that the territorial-era law remains in effect and is enforceable, regardless of anything else. And Brnovich said there is a remedy for those who disagree.
"If people don't like the abortion laws, then they can contact their legislator, they can contact the governor's office,'' he said. "And if any elected official or any group thinks there's confusions in the law or contradictions in the law, once again, they should contact the governor's office, the legislature, and they can call a special session to provide clarity on the issue.''
In fact, Brnovich sent a letter to Anni Foster, legal counsel to Gov. Doug Ducey, asking that he call a special session to let lawmakers provide "additional clarity'' on which of the two laws they want enforced.
But gubernatorial press aide C.J. Karamargin said Tuesday that's not likely to happen.
"We don't see any indication that there are the votes for something like that,'' he said.
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