Are abortions banned or legal? Arizona Supreme Court to announce decision Tuesday
The state Supreme Court will announce its decision on Tuesday in a case that would continue to allow legal abortions up to 15 weeks of pregnancy or ban nearly all abortions in deference to an 1864 law.
The court released a notice on Monday saying it expected to file an opinion in Planned Parenthood of Arizona vs. Mayes/Hazelrigg by 10 a.m. the next business day.
The highly-anticipated ruling has the potential to negatively impact women's health and change the course of state elections.
The decision is up to six state Supreme Court justices — four men and two women, all of them appointed by Republicans. The seventh justice, former Maricopa County Attorney Bill Montgomery, recused himself after accusations of bias on the controversial issue.
They could vote to turn back Arizona abortion policy to the days before the U.S. Supreme Court's 1973 Roe v. Wade decision. They could also decide, as the state's Court of Appeals ruled in December, to make the 15-week law from 2022 override the old law.
A 3-3 tie would solidify the December ruling.
Their decision would almost certainly impact a planned ballot measure by reproductive rights advocates that would enshrine abortion rights in the state Constitution. The Arizona for Abortion Access campaign is being supported by the ACLU of Arizona, Arizona List and Planned Parenthood and needs to obtain 383,923 valid voter signatures by the July 3 deadline. The groups said this week they hit a milestone of 500,000 signatures and are continuing to collect more.
The ruling could make a difference in competitive races like in Phoenix's Legislative District 2, where Republican state Sen. Shawnna Bolick is running against Democrat Judy Schwiebert for Bolick's Senate seat. Bolick, who co-sponsored an unsuccessful bill in 2021 to subject women and physicians to homicide charges, told Politico last month: "If that issue gets onto the ballot, it is going to drive out the Democratic base, and potentially we lose the (state) House and Senate."
Abortion law could change dramatically
For now, the 2022 law covers abortion regulation in Arizona. Signed by former Republican Gov. Doug Ducey, it allows abortions up to 15 weeks but bans those after that time unless immediately necessary to avert the mother's death. Physicians could face a felony charge for providing abortions after 15 weeks, and the law doesn't contain an exception for rape or incest cases.
The 1864 law by the state's First Territorial Legislature bans anyone from providing abortion services except to save the life of the mother, with violators facing a mandatory two to five years in prison if convicted. The state recodified the law in 1901 and again in 1913, keeping the same provisions in slightly streamlined language.
Upholding that ban, which could be enforced 45 days after the court's decision, could trigger the closure of abortion clinics in Arizona. In 2022, eight of Arizona's nine licensed abortion clinics closed temporarily following the U.S Supreme Court ruling overturning Roe v. Wade. A ruling that causes permanent closures could profoundly affect the health of Arizona mothers, leading some people to choose carrying a pregnancy to term regardless of complications.
How, or if, a strict ban gets enforced is also speculative.
Gov. Katie Hobbs issued an executive order last year granting state Attorney General Kris Mayes, a fellow Democrat, the power to stymie any attempted county prosecution for an alleged violation of abortion laws. Mayes said before her election in 2022 that she would refuse to prosecute anyone for having or providing an abortion, although her refusal following a state Supreme Court ruling that affirms a ban could prompt its own legal challenge.
How did the case end up in the state Supreme Court?
Planned Parenthood sued the state to overturn the older law in 1971 but lost when the 1973 state Court of Appeals ruled against the group. The Roe v. Wade decision that year resulted in an injunction on the pre-statehood ban until the Dobbs v. Jackson Women's Health Organization ruling in June 2022 that removed the Roe protections. Republican politicians asked the courts to lift the injunction and allow police and prosecutors to enforce the 1864 law, renewing Planned Parenthood's 50-year legal fight.
Current Democratic Attorney General Kris Mayes is listed as a defendant in the case. But Mayes declined to defend it, leaving that role to court-approved intervenors Dr. Eric Hazelrigg, the medical director of an anti-abortion pregnancy center and Republican Yavapai County Attorney Dennis McGrane. The conservative legal group Alliance Defending Freedom is funding the attorneys for the plaintiffs.
Arizona's modern Court of Appeals ruled in December 2022 the new and old laws could be "reconciled such that physicians are permitted to perform abortions" up to 15 weeks without facing prosecution.
Hazelrigg appealed to the state Supreme Court, which heard oral arguments in the case by attorneys from each side last December.
Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.
This article originally appeared on Arizona Republic: Arizona abortion law: State Supreme Court to announce decision Tuesday
