Dec 12, 2023 - News

Arizona's abortion laws in hands of Supreme Court hearing

Illustration of a judge wearing a stethoscope

Illustration: Sarah Grillo/Axios

The Arizona Supreme Court will hear arguments Tuesday in a case that will determine the future of abortion rights in the state.

Driving the news: The state's highest court will hear arguments Tuesday morning on whether abortion should be permitted through 15 weeks of pregnancy or whether it should be banned in nearly all cases, unless necessary to save the life of the mother.

Catch up quick: A law enacted prior to Arizona statehood barring almost all abortions is still on the books.

State of play: The appellate court's December 2022 opinion said post-Roe laws constitute a "complex regulatory scheme" to restrict but not eliminate elective abortions, therefore permitting doctors to perform or induce them without being prosecuted under the territorial-era law.

  • Permitting the pre-Roe ban to take effect would create an "irreconcilable conflict" with subsequent laws and violate due process by "promoting arbitrary enforcement," the court ruled.
  • The court also interpreted the law allowing physicians to perform abortions within 15 weeks as an explicit exception to the pre-Roe law, which prohibits any person from performing them.

Zoom in: Tuesday's case may hinge on how much the justices interpret a provision in the 15-week ban that explicitly states the Legislature did not intend for the law to repeal the pre-Roe ban.

  • Supporters of the pre-statehood ban argue the Legislature intended it to be enforceable if Roe were overturned.
  • Abortion rights supporters argue if the Legislature had intended for the total ban to take effect in a post-Roe landscape, it would have explicitly included "trigger" language, like in other states.

Of note: The Court of Appeals noted that lawmakers "conspicuously avoided" language in the 15-week ban explicitly stating the pre-statehood ban would supersede other laws if Roe were overturned.

The intrigue: Only six justices will hear the case instead of the full seven after Justice Bill Montgomery recused himself.

  • Montgomery has been an outspoken opponent of abortion rights, commenting on Facebook while serving as the elected Maricopa County attorney in 2017 that Planned Parenthood was responsible for "greatest generational genocide known to man."
  • Chief Justice Robert Brutinel decided not to appoint someone to fill Montgomery's spot on the bench for the abortion case.
  • If the remaining justices split 3-3 on the case, the appellate court's ruling in favor of the 15-week ban will stand, according to the court.

What's next: Whichever law the court upholds, it may only be in effect through the end of 2024 because abortion rights advocates are attempting to put a measure on next November's ballot that would permit abortions to the point of fetal viability, which is around 24 weeks.


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