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What's ahead for abortion in Arizona in 2023?

Celina Washburn protests outside the Arizona Capitol to voice her dissent with an abortion ruling on Sept. 23, 2022, in Phoenix.
Matt York
Celina Washburn protests outside the Arizona Capitol to voice her dissent with an abortion ruling on Sept. 23, 2022, in Phoenix.

By Howard Fischer
Capitol Media Services

PHOENIX -- The incoming attorney general says she won't appeal a ruling that doctors in Arizona can perform abortions through the 15th week of pregnancy.

But that may not end the legal battle as there are others who can keep the case alive.

And regardless of what happens, Arizona's new governor wants state lawmakers to repeal not just the territorial-era law that made virtually all abortions illegal but even the one that the state Court of Appeals just said is now the law of the land.

All this comes on the heels of the appellate court ruling Friday saying the two laws can coexist.

The judges acknowledged that a law that dates to 1864 which makes abortion a crime except to save the life of the mother never was repealed, even after the U.S. Supreme Court ruled in 1973 in the landmark case of Roe v. Wade that women have a constitutional right to terminate a pregnancy until a fetus is viable, generally between 22 and 24 weeks.

But since 1973 legislators, unable to outlaw the practice, enacted a series of restrictions, ranging from where abortions can be performed and by whom to requirements for waiting periods and, in the case of minors, parental notification. In essence, the appellate judges said, lawmakers said doctors can perform abortions as long as they follow those rules.

And the court said it's no different with the 15-week ban, even though it was approved last year in the belief that the Supreme Court would uphold a similar Mississippi law.

More to the point, the judges said the fact that the high court totally overturned the 1973 ruling and returned the power to the states to regulate abortion did not undo all those new laws. And that, they said, means that doctors who follow those laws can't be prosecuted under the old law.

The ruling is a loss for Attorney General Mark Brnovich who had urged the judges to allow prosecutors to decide whether they want to charge doctors who perform abortions with a crime.
But Brnovich, who made an unsuccessful bid for U.S. Senate when he could not legally seek a third term, will be out of power as of noon on Tuesday. And his successor, Kris Mayes, has said she doesn't intend to appeal the ruling to the Arizona Supreme Court.

Only thing is, that doesn't eliminate a possible petition to the state's high court. And that's because there are others involved in the case.

The lawsuit actually goes back to the 1970s when, even before Roe v. Wade, Planned Parenthood challenged the state's abortion ban. At that time, the fight involved not just the state attorney general and the Pima County attorney but also Clifton Bloom who the court appointed as a "guardian ad litem'' to represent the interests of unborn children in Arizona.

The outcome of that challenge was sealed with the 1973 Supreme Court ruling, with the state courts saying they had no choice but to follow suit and enjoin the enforcement of the territorial-era law. But when Roe was overturned last year, Brnovich reopened that case -- this case -- seeking to dissolve the injunction.

Bloom is now dead. And Pima County Superior Court Judge Kellie Johnson, who inherited the reopened case, agreed to let Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, be substituted in his place.

That means Hazelrigg, represented by the anti-abortion Alliance Defending Freedom, is a party -- and may have the right to appeal.

"This is going to get interesting,'' said Pima County Attorney Laura Conover.

She is part of the case because the original 1970s Planned Parenthood lawsuit also involved the county. But Conover, unlike her predecessor, has now sided with Planned Parenthood in arguing that the territorial-era law cannot be enforced against doctors.

And with Mayes going to now also side with Planned Parenthood, that leaves everyone still involved in the case supporting the legality of the 15-week law -- with only Hazelrigg in opposition if the courts allow him to continue playing a role.
There was no immediate response from ADF.

Friday's ruling would appear to make it unnecessary for incoming Gov. Katie Hobbs to follow through with her campaign promise to call a special legislative session to repeal the territorial-era law as the appellate court ruling, unless overturned, means it cannot be applied to those legally entitled to perform abortions.

But Hobbs said that isn't enough. She wants to also get rid of the 15-week law.

"The decision to have a child should rest solely between a woman and her doctor, not the government or politicians,'' Hobbs said in a prepared statement after the ruling. And she said the 15-week law does the opposite.

"It puts the government in charge of a woman's private health care decisions, with deadly consequences,'' the incoming governor said. And once a woman has gone beyond 15 weeks, she said, it "cruelly offers no exceptions for victims of rape or incest.''

Only thing is, getting rid of that 15-week limit and returning the law in Arizona to the way it was before -- meaning abortions up to fetal viability -- would require legislative action. And Hobbs, in an interview with Capitol Media Services, acknowledged that could prove difficult.

"Many members of the incoming legislature voted for that,'' she said. But Hobbs said that her conversations with different medical providers convinces her that the 15-week limit needs to be repealed.

One case, she said, involves a woman who was the victim of rape or incest where "the trauma was so great they weren't able to recognize their pregnancy until it was far past the 15 weeks do to anything about it.''

The ultimate solution, Hobbs said, may rest with voters themselves.

A planned 2022 initiative to put the right to abortion into the Arizona Constitution faltered when backers did not have enough time to get signatures.

"I think there'll be a strong effort for a ballot measure in 2024, which I will get behind,'' Hobbs said.