By Isabella Santos.
Current Litigation on an Age-Old Law
On August 22, the Arizona Supreme Court granted petition for review of Planned Parenthood v. Mayes, reviving earlier litigation from 2022 where Mark Brnovich, Arizona’s Attorney General at the time, requested that the court reinstate a legal ban on abortion dating back to 1864. The critical issue before the Arizona Supreme Court is whether the state can prosecute all people—including licensed physicians—for performing an abortion at any time during pregnancy “except to save a mother’s life.”
History of Abortion Law in Arizona
Arizona’s territory-era statutory prohibition on abortion dates to 1864, nearly fifty years before Arizona became a state. Enshrined in the “Howell Code” in 1864 and later codified in A.R.S. §§ 13-211–213, the statute prohibits any person from providing an abortion to a pregnant woman unless the procedure is required to save her life. The statute expressly prohibits abortion by any means and by any person, unless necessary to save the life of the mother. There is no exception for pregnancies resulting from rape or incest. Individuals found in violation of the statute are subject to imprisonment for a term of at least two years.
In 1971, Planned Parenthood of Tucson, ten doctors, and “Jane Doe”—an anonymous woman seeking an abortion—brought suit alleging that A.R.S. §§ 13-211–213 (renumbered in 1977 as A.R.S. §§ 13-3603–3605) was unconstitutional. The petitioners in Nelson v. Planned Parenthood of Tucson sought a permanent injunction preventing the enforcement of the statute, as well as a declaratory judgment that the statute was unconstitutional under both the Arizona and United States Constitutions. In 1973, the Arizona Court of Appeals upheld the statute as constitutional. Finding the statute to be a valid exercise of the state police power, the court stated that “the legislature has balanced the interest of the mother against the interest of the fetus and has opted in favor of the fetus.” Merely three weeks later, however, the decision was superseded by the U.S. Supreme Court decision in Roe v. Wade, which safeguarded abortion rights for women across the country before the viability of the fetus.
As a result of the U.S. Supreme Court’s precedential decision, the Arizona Court of Appeals vacated its prior opinion on rehearing. The abortion statutes were declared unconstitutional and a permanent injunction was issued preventing enforcement of the abortion ban. In short, Roe—not the Arizona court’s reasoning—compelled the Arizona Court of Appeals to enjoin the territory-era abortion laws in 1973.
Present Issues Before the Court
In 2022, Roe was overturned by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Org. Endowed once again with the power to regulate reproductive rights, states with pre-Roe prohibitions on abortion—such as Arizona—scrambled to determine whether these decades-old statutes were enforceable. In the months following Dobbs, the Pima County Superior Court lifted the 1973 injunction, holding that the “Declaratory Judgment and Injunction signed by the Court . . . no longer has any prospective application as to A.R.S. § 13-3603.” The Superior Court decision was appealed, and, in Planned Parenthood v. Brnovich, the Arizona Court of Appeals was asked to determine whether a physician who “performs an elective abortion in conformity with more recent statutes . . . is nevertheless subject to prosecution” when more recent statutes like Title 36 permit licensed physicians to perform elective abortions until the gestational age of fifteen weeks. The Court of Appeals found that physicians were not subject to criminal prosecution, because Title 36 permitted them to perform elective abortions under certain circumstances. Kris Mayes, then the Arizona Attorney General-elect, stated that she had no intention of appealing the decision and supported the court’s decision. However, the fight for abortion rights remains contentious in Arizona.
The Planned Parenthood v. Brnovich controversy has endured, and, on March 1, 2023, an intervening appellee filed a Petition for Review in the Arizona Supreme Court. This petition was granted in August with oral argument set for December 2023. The appellee has asked the court to “clarify that A.R.S. § 13-3603 forbids all people, including physicians, from performing abortions except to save a mother’s life, and that Title 36 did not repeal or otherwise limit § 13-3603.”
The Unknown Future of Reproductive Rights
Currently, the reproductive rights of Arizonans hang in legal liminality. One potential outcome of the Supreme Court’s review is a broad, near-total ban on abortions that provides an exception only if necessary to save the mother. The other potential outcome is the continued ability to pursue an elective abortion, provided by a licensed physician up until fifteen weeks. The extraordinary binary of these options is difficult to ignore.
The Arizona Court of Appeals opinion remains the law, and abortions are legally obtainable until the probable gestational age of fifteen weeks. While the court continues to adjudicate the right to an abortion, Attorney General Mayes has taken other steps to help protect Arizonan’s reproductive rights. For example, she issued advisory guidance to assist Arizona residents in protecting their digital privacy and data as it relates to abortion-related care. The guidance includes information on keeping browser searches private, limiting app and mobile tracking, and encourages caution with period-tracking apps, all of which are contemporary legal issues surrounding reproductive rights.
The landscape of abortion rights in Arizona since its territory days has evolved. While state laws have seen substantial changes related to abortion over the years, the body of scientific knowledge surrounding health and childbirth has also transformed. It is remarkable that, despite these enormous legal and medical developments, a statute older than the state itself commands such significant attention, litigation, and cost. Since the 1970s, the U.S. Supreme Court’s decisions related to abortion have imposed substantial changes on state approaches to reproductive rights. Arizona has also instituted its own abortion-related legislation in the decades between Roe and Dobbs. Faced with pre-Roe and post-Roe statutes regulating abortion, the crux of the issue the Arizona Supreme Court will rule on in December is: without Roe, which law is the law of the land?
Isabella Santos is a 2L Staff Writer at Arizona State Law Journal. Originally from Washington State, she has embraced Arizona’s warm weather and desert landscapes. Outside of law school, she can be found baking, playing with her dog, and or participating in various outdoor activities.