Dec 12, 2023 - News

Arizona Supreme Court hears arguments on conflicting abortion bans

Illustration of a column wrapped in snakes from a caduceus.

Illustration: Shoshana Gordon/Axios

Whether the Legislature intended for the state to enforce a territorial-era law banning nearly all abortions was at the heart of the arguments the Arizona Supreme Court heard in a case that will determine the limits of abortion law in the post-Roe landscape.

Driving the news: The court heard arguments on whether a ban on abortions after 15 weeks of pregnancy should be enforced or whether Arizona should revert to a law banning all abortions except those needed to save the life of the mother, which was on the books at the time of the 1973 Roe v. Wade decision.

Of note: The 15-week ban included a provision affirming it doesn't repeal the pre-Roe ban or other pre-existing law.

Zoom in: Attorney Jake Warner of the anti-abortion Alliance Defending Freedom spoke first Tuesday, arguing there's no conflict between the pre-Roe and 15-week bans and the 2022 law still has "tremendous meaning."

  • The 2022 law says abortions after 15 weeks are only permitted in emergencies needed immediately for life-saving purposes.
  • "Not every lifesaving termination is an emergency," Warner said, explaining the difference between the restrictions in the two laws.
  • The 15-week ban says the Legislature didn't intend to "make lawful any abortion that is currently unlawful," which Warner said applies to the law as it's interpreted now, not as it was at the time.

The other side: Solicitor general Joshua Bendor, who argued on behalf of Attorney General Kris Mayes in opposition to the territorial law, noted the Legislature modeled the 15-week ban on a Mississippi law, but changed language that would've explicitly allowed a total ban following Roe's overturning.

  • Gov. Doug Ducey, who signed the 15-week law, openly stated it would take precedence over the total ban in a post-Roe Arizona, noted attorney Andy Gaona, who represented Planned Parenthood Arizona.
  • The 2022 law states it doesn't repeal the pre-Roe ban or any other abortion laws on the books, and Gaona argued that Warner's interpretation would render numerous other statutes unenforceable.
  • Gaona also said the pre-Roe ban, which prohibits any person from performing an abortion, could still be used against non-physicians.

Meanwhile, Gaona said the word "currently" applied to other laws already on the books, not prospective laws.

What they're saying: Chief Justice Robert Brutinel, Vice Chief Justice Ann Timmer and Justice Clint Bolick questioned why the Legislature wouldn't explicitly state in the law that its intent was for the territorial-era ban to be enforced if Roe were overturned.

  • Warner said the Legislature's intent was clear and it was free to use whatever language it wanted.
  • Timmer also noted there were different penalties for violating the 15-week and pre-Roe bans, and questioned whether allowing both to be enforced would create due process issues.
  • Brutinel said Warner's interpretation of the "currently lawful" provision in the 15-week law seemed like an "unreasonable reading."

Of note: At a post-hearing press conference, Eric Hazelrigg, who petitioned the courts to reinstate the pre-Roe ban, said an abortion could be lifesaving, but not immediately necessary in a medical emergency involving some cancer treatment.

  • His attorney Warner said an abortion wouldn't be provided immediately in such circumstances because the "fetal viability line" has gotten much earlier over the years, and the state has a legitimate interest "to balance protecting the mother's interest as well as the unborn child. Arizona is trying to protect as much life as possible."
  • Jill Gibson, Planned Parenthood Arizona's chief medical director, called Warner's argument "very confusing," and said it would put doctors in an untenable position. "A physician should not have to consult their attorney in order to understand if they can provide basic, essential health care," she said.

What's next: It's unclear when the court will issue a ruling.


Get more local stories in your inbox with Axios Phoenix.


Support local journalism by becoming a member.

Learn more

More Phoenix stories

No stories could be found


Get a free daily digest of the most important news in your backyard with Axios Phoenix.


Support local journalism by becoming a member.

Learn more