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Arizona Supreme Court gives AG 90 more days to consider SCOTUS review of 1864 abortion law

Attorney General Kris Mayes details Tuesday what she says has been massive fraud in billing to the Arizona Health Care Cost Containment System, the state's Medicaid program.
Capitol Media Services file photo by Howard Fischer.
Arizona Attorney General Kris Mayes.

By Howard Fischer
Capitol Media Services

PHOENIX -- Arizona may have no pause in abortions, at least through 15 weeks of pregnancy.

And it depends on when lawmakers finally go home this year.
In an order Monday, the Arizona Supreme Court agreed to give Attorney General Kris Mayes an extra 90 days to decide whether she wants to seek U.S. Supreme Court review of its order reinstating the state's 1864 abortion law. That statute outlaws the procedure except to save the life of the mother.
That delays the court's "mandate'' through Aug. 12.
But there already is a separate agreement that the state will not begin to enforce the old law for at least 45 days after that. An aide to Mayes said that comes on Sept. 26.
What makes that important is that the repeal of the old law approved earlier this month by the Legislature takes effect on the 91st day after the end of the session.
There is no date yet for that to happen.
But the two extensions essentially mean that if lawmakers go home in the next 45 days -- by June 27 -- there will be no gap in the state laws that allow abortion until the 15th week of pregnancy.
"With today's ruling by the Arizona Supreme Court staying the issuance of its mandate for at least 90 days, we now know that abortion will remain legal in Arizona for the next several months,'' said Angela Florez, president and chief executive officer of Planned Parenthood Arizona.
The justices did reject a separate plea by attorneys for her organization to delay their mandate until whatever day the repeal does take effect. Planned Parenthood had argued it makes no sense to have the territorial-era law in place for some brief period of time knowing that it will go away.
But Chief Justice Robert Brutinel, writing for the court, said Monday's order to does not preclude Planned Parenthood from seeking an additional stay of the statute if they believe it is necessary.
That could happen: The effective date for measures approved in the 2023 legislative session was Oct. 30.
Monday's ruling came over the objections of Alliance Defending Freedom. That Christian law firm represented Dr. Eric Hazelrigg, medical director of the Crisis Pregnancy Center who had been appointed to represent the interests of unborn children in the legal fight over the enforceability of the 1864 statute.
Jake Warner, senior counsel for ADF, said the organization was "deeply saddened'' by the vote of the Legislature to repeal the old law. But he argued to the justices that there was no need for them to delay in enforcing their April 9 ruling -- even if it meant only a short window in which most abortions would again be illegal.
He said any delay translated out to about 25 abortions per day. And Warner argued that if lawmakers wanted an immediate repeal of the law and to allow those abortions to take place they would have added an "emergency clause'' allowing it to take effect immediately.
They did not. But that was because it takes a two-thirds vote of both the House and Senate for such special treatment. The repeal cleared the House on a 32-28 margin; the Senate vote was 16-14.
"Though the court paused its judgment, we will continue working to protect unborn children and promote real support and health care for Arizona families,'' Warner said in his prepared statement. But he provided no specifics on what, if anything his organization can do about reinstating the territorial-era law for any period of time.
Mayes, in a prepared statement, said she will continue to pursue legal theories to overturn the April 9 ruling which concluded that the U.S. Supreme Court decision to overturn Roe v. Wade in 2022 allowed the long-dormant -- but never repealed -- 1864 law to again be enforced.
"I continue to believe this case was wrongly decided, and there are issues that merit additional judicial review'' she said.
But once the territorial-era law is repealed -- whatever day that occurs -- there is nothing for Mayes to appeal to the nation's high court.
While the delay brought breathing room for Planned Parenthood and other abortion providers, backers of an initiative to cement abortion rights into the Arizona Constitution said the latest legal maneuvers prove that a more permanent solution is necessary.
Chris Love, spokesperson for Arizona for Abortion Access, pointed out that the 15-week law itself -- the one that remains in effect and would be the law once the old law is repealed -- has limits. Most notably, there are no exceptions in case of rape or incest.
More to the point, Love said unless the initiative is adopted by voters on Nov. 5 and put into the Arizona Constitution, state lawmakers would remain free to adopt future restrictions on the right of women to terminate a pregnancy.
"Arizonans deserve to know our rights are ensured and protected, not constantly in flux based on the whims of politicians, or the outcomes of endless lawsuits,'' she said in a statement.
All this has its roots in that 2022 decision by the U.S. Supreme Court to overturn Roe v. Wade.
That historic 1973 ruling said women have a constitutional right to terminate a pregnancy. And that, in turn, overturned more restrictive state statutes, including the Arizona law dating back to 1864 which says a doctor who performs an abortion except to save the life of the mother can be sentenced to up to five years in state prison.
Only thing is, Arizona lawmakers never repealed the old law after the Roe decision. In fact, they renumbered and recodified it in the 1970s, though it still wasn't enforceable.
But once Roe was overturned, then-Attorney General Mark Brnovich got Pima County Superior Court Judge Kellie Johnson to rule that the never-repealed territorial-era law could again be enforced even though lawmakers had since approved a 15-week ban. Johnson pointed out that, in enacting the more recent law, the Legislature spelled out it was not repealing the older law.
That decision was stayed by the Arizona Court of Appeals. But the Arizona Supreme Court, in its April 9 decision, voted 4-2 to say that Johnson was right.
That set off a scramble, first to repeal the old law -- what lawmakers did earlier this month -- and then to delay the court's order as long as possible to prevent a "blackout'' period during which abortions would come to a halt until the repeal becomes law.
That 90 day delay approved by the Supreme Court Monday, by itself, isn't enough: The Legislature remains in session, with no firm date to adjourn for the year.
But what does make a difference is a parallel challenge to the 1864 law, this one filed by the Arizona Medical Association and Dr. Paul Isaacson, who performs abortions.
Brnovich sought to place that case on ice. So he agreed that even if the state won its case against Planned Parenthood he would not begin enforcing the territorial-era law for at least 45 days after that Supreme Court ruling became effective.
That deal benefited Brnovich because it meant his attorneys would not have to simultaneously defend two separate lawsuit on the same issue. And since Brnovich acted on behalf of the state, that promise for an additional 45 days -- now on top of the extra 90 days given by the Supreme Court -- effectively bars any prosecution until late September.
And by then, the repeal approved by the Legislature could be effective.
On X and Threads: @azcapmedia