Legal expert says Arizona abortion ban will lead to 'chaos' in courts. Here's what we know

The Arizona Supreme Court ruling that reinstituted a 160-year-old ban on almost all abortions sent shock waves across the state and nation on Tuesday, but most say it will not immediately impact abortion access.

The ruling is subject to further litigation at a county court and could spark action by the Arizona Legislature to repeal the ban.

But barring those developments, the ruling will eventually cut off Arizonans' ability to obtain abortions and stop the limited number of medical providers in the state from performing abortions or prescribing abortion pills.

Here's what we know — and what is uncertain — about the ruling.

What does the Arizona abortion law mean?

The court said a law dating back to 1864 — before Arizona became a state — can be enforced. The law subjects anyone who "provides, supplies or administers" an abortion at any stage of a pregnancy to two to five years in prison, unless it is to save the life of the mother.

The court was asked to consider two conflicting laws, the 1864 ban and a 2022 law that limited abortions to the first 15 weeks of pregnancy, and ruled that the 1864 ban prevailed.

As the court wrote in the 4-2 decision: "Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal."

What's next on Arizona abortion ban?

The court said no enforcement of the ban could take place in the 14 days after its decision. It left open that window so that Planned Parenthood could pursue any unfinished legal challenges to the ban.

Planned Parenthood sued over the ban in 1971, saying Arizona's abortion law was unconstitutional. But that case was effectively made unnecessary and put on hold when the U.S. Supreme Court decided Roe v. Wade in 1973. Roe v. Wade held that abortions were legal across the nation up to viability, when a fetus can likely survive outside the womb.

The Arizona Supreme Court this week gave Planned Parenthood the 14-day period to renew any arguments it made in the original case but did not pursue because of Roe and its legal implications.

Those arguments could include whether the 1864 law is constitutional.

When does the Arizona abortion ban take effect?

It's up for some debate and will likely be sorted out by future court decisions.

It will be at least 14 days before enforcement could begin, according to the Arizona Supreme Court ruling. One abortion provider in Phoenix said she would provide abortions through that period, and possibly longer, subject to legal advice.

But a group of strange bedfellows — abortion rights advocates and abortion opponents — also agreed that a separate Maricopa County Superior Court case provides a longer window that will allow abortions to continue through May. This group includes Planned Parenthood, a provider, and those who support restricting abortion access, like Republican leaders in the Legislature and the conservative Center for Arizona Policy.

In a separate lawsuit filed in October 2022 on behalf of a Phoenix doctor and the Arizona Medical Association, the Maricopa County Superior Court entered an order that bars the state from enforcing the near-total abortion ban until 45 days after the Arizona Supreme Court issues its final mandate in the case that it ruled on Tuesday. That final mandate could come in 15 days.

"I think that this situation, unsurprisingly, just winds up in a ton of more litigation," said Jennifer Piatt, research scholar and co-director of the Center for Public Health Law and Policy at Arizona State University's Sandra Day O’Connor College of Law. "When the Dobbs decision came out, the U.S. Supreme Court said we're getting courts out of the abortion business. And clearly that's not happened."

The 2022 U.S. Supreme Court decision that overturned abortion rights was called Dobbs v. Jackson Women's Health Organization.

Typically, a county court decision would not take precedence over any ruling from the Arizona Supreme Court, the state's top court. But Piatt said the existence of the Maricopa County Superior Court ruling, which documents an agreement not to enforce the pre-statehood ban, provides legal cover for abortion providers.

Will the Arizona abortion ban be enforced?

Whether to prosecute cases under the ban is a decision that falls to Arizona's 15 county attorneys, who immediately following the ruling were mostly unreachable by The Arizona Republic or declined to comment. Those county attorneys could try to bring a criminal case under the provisions of the near-total ban.

But if they did so, the case may end up back in an Arizona courtroom for a different reason.

Here's why: Arizona Gov. Katie Hobbs, a Democrat, issued an executive order last year consolidating prosecutions of abortion cases with the Arizona Attorney General's Office. Attorney General Kris Mayes, a Democrat and staunch abortion rights defender, said then and recommitted on Tuesday that she would never prosecute an abortion case, seemingly nullifying any threat of county prosecutors pursuing such cases.

But there have been objections to the legal basis for Hobbs' and Mayes' power play, including from county prosecutors themselves. The county attorneys said they are elected officials and their authority cannot be usurped by the governor. Lawsuits to settle the issue were threatened last year, but never actually filed.

So it's possible that any criminal prosecution of an abortion case would lead first to a lawsuit against Hobbs' executive order, which could delay the criminal case or prompt another stay of enforcement of the ban, Piatt said.

“It's going to be a lot of chaos" in the courts, Piatt said.

That chaos and confusion would likely extend to providers as they work to understand and comply with those possible court orders. That could potentially lead to a period of uncertainty about whether abortions are legal, just as what followed the Dobbs decision.

Hobbs on Tuesday stood firm that her executive order would withstand any legal challenge.

"I say bring it on,” Hobbs said when asked about a possible lawsuit. “I would not have issued the executive order if I did not think it was legally sound.”

Could clarity come from legal challenges?

Yes, but this could take some time.

Abortion rights advocates could ask for a stay of the Arizona Supreme Court's ruling in the next two weeks as they pursue constitutional challenges.

The Supreme Court opinion explicitly acknowledged this possibility, writing that Planned Parenthood could "request further stay relief at the trial court’s discretion."

But on Wednesday, just more than 24 hours after the court's ruling, no decisions had been made about legal next steps. Planned Parenthood and Mayes were weighing their options about how to proceed in court.

Could clarity on Arizona's abortion ban come from the Legislature?

Possibly.

The Arizona Legislature is controlled by Republicans who in recent years have made abortion harder to access in the state. But in the wake of the Arizona Supreme Court ruling, several Republican lawmakers said they would support repealing the pre-statehood ban.

That would likely leave behind an Arizona law enacted in 2022 that bans abortions after 15 weeks except to save the mother's life. The law does not allow abortions after 15 weeks of gestation in cases of rape or incest.

But repealing the near-total ban on abortions isn't a sure thing, even with newfound GOP support. A repeal attempt in the Arizona House of Representatives on Wednesday was shut down by Republicans, who called to immediately adjourn instead.

Where is abortion legal? Here's what to know about laws in Arizona's neighboring states

Republic reporter Stephanie Innes contributed to this article.

Reach reporter Stacey Barchenger at stacey.barchenger@arizonarepublic.com or 480-416-5669.

This article originally appeared on Arizona Republic: Arizona abortion ban: Expert says ruling will lead to legal 'chaos'