By Howard Fischer
Capitol Media Services
PHOENIX -- Yavapai County Attorney Dennis McGrane wants to intervene in the state Supreme Court battle over abortion laws because he wants to start enforcing a territorial-era law that outlaws virtually all abortions.
In pleadings to the high court, attorneys for McGrane said he does not agree with the decision by the state Court of Appeals that a 2022 law permitting doctors to perform the procedure through the 15th week of pregnancy trumps the older statute.
But his ability to prosecute doctors for violating the old law hangs on whether the state's high court sees things his way.
And he fears that is in danger because no government attorney is making that argument now that newly elected Attorney General Kris Mayes has decided that position, taken by her predecessor Mark Brnovich, is legally indefensible.
In fact, his pleadings note, the only government lawyer involved in the case is Pima County Attorney Laura Conover.
She is there because Pima County was involved when the case first went to court in 1971. And, like Mayes, she, too, has decided that the Court of Appeals is correct and the old law which outlaws abortion except to save the life of the mother is no longer enforceable.
That old law is not going undefended. The court has allowed Dr. Eric Hazelrigg, medical director of Crisis Pregnancy Center, to intervene.
But Jacob Warner with Alliance Defending Freedom -- the same legal team representing Hazelrigg -- told the justices that Hazelrigg was appointed to represent the interests of unborn children.
What McGrane wants, Warner said, is to represent "the interests of all people in his jurisdiction.'' And what that means, he said, is to "fully enforce'' the territorial-era law.
"This interest sits in grave jeopardy now,'' Warner told the justices.
Hanging in the balance is whether abortions will remain legal in Arizona.
Planned Parenthood unsuccessfully challenged the territorial-era law in 1971. But that ruling was rescinded after the historic 1973 U.S. Supreme Court ruling in Roe v. Wade which said women have a constitutional right to terminate a pregnancy at least until the point of fetal viability, considered somewhere between 22 and 24 weeks.
Based on that, Arizona judges enjoined the state from enforcing that law.
Last year, however, the nation's high court overruled Roe, returning the issue of abortion to the states.
That resurrected the original lawsuit. And a trial judge dissolved the injunction and again made most abortions illegal, noting that legislators had never repealed the territorial-era law.
Only thing is, state lawmakers, anticipating the U.S. Supreme Court would only rule that abortions are illegal after 15 weeks, had previously enacted a similar law here. And the state Court of Appeals said there was a way to "harmonize'' the two laws, with the new one applying to doctors and the old one to everyone else.
That, for the moment, means abortions by doctors remain legal through 15 weeks.
What it also did is send the case to the state Supreme Court.
Warner told the justices that McGrane is entitled to argue that the appellate court ruling was wrong and he should be entitled to prosecute doctors -- or anyone -- who violates the territorial-era law.
"No state official will defend the law,'' Warner said, referring to the decision by Mayes not to appeal that appellate court ruling.
"The county attorney risks being bound by a judgment enjoining a valid state law just because the attorney general chooses not to defend it,'' Warner said. "That's not just.''
Those arguments drew derision from Conover's office.
"The Yavapai County Attorney asserts a purported 'interest' grounded in his belief that he has a 'right to enforce' the law as he would like it to be as opposed to a duty to enforce the law as passed by the Legislature and as interpreted by the courts,'' wrote Samuel Brown, Pima's chief civil deputy county attorney.
"But he provides no support for his repeated assertion that such a right exists.''
He also said that the attorney general and Pima County attorney, by virtue of being named as defendants in the original 1971 litigation, all have "an interest in ensuring that the law is clear, unambiguous, and applied fairly.'' Brown said the election of a new attorney general does not change that.
Andy Gaona, representing Planned Parenthood, agreed.
He said that, legally speaking, McGrane's interest in the outcome of the case has nothing to do with his personal feelings about whether the territorial law is the one that should be enforced. Instead, Gaona said, McGrane has the same interest as any other county attorney.
"They need to be clear as to what constitutes criminal action under Arizona's laws ... and is therefore subject to prosecution,'' he said.
"If County Attorney McGrane contends that his interest diverges from County Attorney Conover's and AG Mayes', it is only because he confuses his his purported desire to 'fully enforce' this particular law according to his interpretation of it with his statutory obligation to know what constitutes criminal action and enforce the law accordingly,'' Gaona said. "His enthusiasm for enforcing (the territorial-era law) as written is not a legitimate interest.''
And there's something else.
Gaona pointed out that Hazelrigg, through his own petition to the Supreme Court, is arguing the justices should clarify that the old law forbids all people, including doctors, from performing abortions except to save the mother's life, and that the 2022 law does not override that. And McGrane is not only represented by the same attorneys at Hazelrigg but even said he won't file any additional arguments.
"Simply adding more voices arguing essentially the same position isn't enough to warrant intervention,'' Gaona said.
The justices are not set to take up the issue until at least May.